NO. 07-06-0207-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JANUARY

23, 2007

______________________________ TOM H. W HITESIDE, APPELLANT

V. CARR , HUN T & JOY , L.L.P ., DON ALD M. HUNT, LATRELLE BRIGHT JOY AND GAR Y BELLAIR, AP PELLEES

_________________________________ FROM THE 99 TH DISTRIC T COURT O F LUBBOCK COUNTY; NO. 2004-528,060; HONORABLE WILLIAM SOWDER, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORA NDUM OPIN ION Appellant Tom H. W hiteside appeals a final order confirming an arbitration award and denying his motion to compel production of documents in a di spute over the method used to calculate payments due Whiteside from the law par tnership of

which he formerly
was a member. Appell ees are the former partnership, Carr Hunt & Joy, L.L.P. (CHJ ) and three of its former members , Donald M. H unt, Latrell Bright Joy and GaryB e l l a i r . We affirm the trial court’s order

.1 Our recitation of the facts and pr ocedural background of the case comes largely from this Court ’s memoran dum opi nion denying a petition for w rit of mandamus broug ht by Whiteside. In re Whiteside , No. 07-06-0078- CV, 2006 WL 1519430 (Tex.App.–Amarillo June 6, 2006, orig. proceeding).

2 As we la ter discuss , Whiteside conten ds the ci rcumstances r aise the iss ue whether this action consti tuted a merger of the partnershi ps or acts of the for mer par tners indi vidua lly. The record indi cates Whiteside’s former partners occ upied the same offices and used the same office staff and equipment as they used in the CH J partnershi p. 2 FACTS 1 By a lette r dated October 31, 2000, Whiteside withdr ew from CHJ after l earning of his partn ers’ plans to joi n anothe r firm

. The following day, three members of CHJ beg an practicing law with the firm of Mullin Hoard Brown (MHB). 2 Whites ide brought suit in October 2004 against the CHJ part nership and his former partners individually for breach of the partnershi p agreement. The di spute centers a round his claim that the partnership agreement

entitles hi m to a greater payment for CH J’s collec ted accounts re ceivable t han he has received. By a provision of the partnership agreement, the CHJ partners agreed to su bmit any dispute arising from the conduct o f the affairs of the partner ship to bindin g arbitr

ation pursuant to the Texas G eneral Arbit rati on Act ( TGAA). Citi ng the arbit ration prov ision, Hunt and Joy

sought to stay thelitigat ion and compel arbitrati on. The trial court granted thatrequest i n an agreed or der directi ng the parties to arbitrate “the partnershi p payment claim asserted by W hiteside[.]”
The parties sel ected an arbitr ator who conducted an arbitration hearing in September

2005. At that hearing the part ies entered a w ritten agr eement and stipulat ion,3

to which w

e will refer as the “submission agreement,” to distin guish it from the partnership agreement. The submission a greement reci ted that, after November 1, 2000, Whiteside had not been paid pursuant to aparticular paragraph of the partnership ag reement but had instead been paid his “partici pation percentage” of the firm ’s accounts receivable actually collected less his pr

oportionate part

of the expenses. The submission agreement prov ided thatthe par

ties agr eed to sub mit to thename d ar bitr ator “th e is sue of lia bil ity , if a ny, fo r breach of

contract of the ag reement of general partnership pursuant to [the particular paragraph] based on a proper constructi on of the agreement of g eneral partner ship, the paragraph in issu e and the applicable l aw, juri sdiction and affirmat ive defenses.” Sig nificantl y, the submission agreement further provided, “The parties ag ree that no evidence other than the contract w ill be con sidered at this hearing and the arbitrator will render a decision as a matter oflaw.”
Atthe hearing, th e parties further stipulated to the authenticity of a copy of the partnership agreement an d that Hunt, Joy and Bellair began practi cing w ith MHB on November

1, 2000. The p art iessubs equ entl y s ubmi tted bri efs supp ortin g thei r resp ecti ve positions. In October 2005 the arbitrato r issued his decision finding there was no breach of the partnershi p agreement. Through correspondence Whiteside urged reconsidera tion
on the b asis that determination of wheth er the agree ment had been breached r equired consideration of evidence co ncernin g any neg otiations betw een MHB and his

former partners. Specificall y, he arg ued the evidence wou l d show a merger between the CHJ partnership and MHB, supporting his view there was no dissolution of the CHJ partnership
a nd the merged partnership was liable for payments in accorda nce with the CHJ3 Both parties also cite Texas and f ederal court cases ap plying the Federal

Arbitration Act (FAA) , 9 U.S.C. §§ 1-16. State an d federal jurisprudence in this area is largely consistent and the well- developed federal jurisprud ence is inst ructive. See In re D. Wilson Const. Co. , 196 S.W.3 d 774, 780 (T ex. 2006) (state and fede ral acts can apply simultaneously ). 4 agreement. The arbitrator denied the request to reconsider his ruli ng, citing the provi sion of the submission ag reement limiti ng the evi dence he could con sider.
In January2006, Whiteside filed two moti ons in the trial court, seeki ng to have the courtvacate the arbitration award and to “submit docu ments in camera .” The second motion did not request permission to submit documents, but sought to have the trial court require CHJ and the ot her partners produ ce doc uments regard ing their “dealings ” with MHB between June and November 2 000. The trial court denied both motio ns, confirmed the arbitrati on award, and rendered a take-nothing judgment against Whiteside in an order signed February 13, 2006. Whiteside now appeals that order.
LAW AND ANALYSIS By his first issue, W hiteside asks us t o de termine whether the trial court erred in denying his motion to v acate the a rbitrati on award. There is no dis pute the arbitr ation procee ding, and our rev iew of the trial cour t’s action, are governed by the T GAA. Tex. Civ. Prac. & Re m. Code An n. §§ 171.001-.098 (Vernon 2005). 3 That act protect s the enforceability

of written agreements to r esolve dis putes through binding arb itration. A trial court’s review o f a n arbitrati on award i s limited and d eferential. Universal Computer Systems, Inc. v. Dealer Solutions, L.L.C. , 183 S.W.3d 741, 752 (Tex.App.--Houston [1st Dist.] 2005, pet. denied). On request of a party the courtmust confirm an award unless5

grounds for vacating , modifying or correc ting the awar

d are s hown. Tex. Civ . Prac . & Rem

. Code Ann. § 171.087 (Vernon 2005); Women's Region al Healthcar e v . Femp artners of NorthTexas , 175 S.W .3d 365, 367 (Tex.App. –Houston [1st Dist.] 2005, no pet.). Secti on 171.088 lists the g rounds on w hich an a ward may be vacated. When reviewing an arbitration award, every reas onab le pre sumption must be i ndulged to uphol d the arbitrator’s decision, and none is indu lged aga inst it. CVN Group, I nc. v. Delgado , 95 S.W.3d 234, 238 (Tex. 2002), ci ting San Antonio v. McKenzie Const. Co. , 136 Tex. 315, 150 S.W .2d 989, 996 (1941). Re vie w is so limited that a court may not vacate an arbitration award even if it is bas ed on a mistake of fact or law

. Vernon E. Faulconer, Inc.
v. HFI Ltd. Par

tnership. , 970 S.W.2d 36, 39 (Tex.App.-- Tyler 1998, nopet.). Judi cial scruti ny focuses on integ rity of pr ocess rather

than propriet

y of result. TUCO Inc. v

. BurlingtonNorthern RR. Co. , 912 S.W.2d 311, 314 (Tex.App .–Amarillo 1995) , modified, 960 S.W.2d 629 (Tex. 1997). An appel late court’s review of the trial court’s co nfirmation of the arbitrat ion award is de novo. Werline v. E. Tex. Salt Water Disposal

Co. , No. 06-06- 0039-CV, 2006 WL 3715907 (Tex.A pp.– Texa rkana December 18, 2006, no pet. h.) (applying Texas common law ). See also Henry v. Halli burton Energy Se rvices, Inc ., 100 S.W.3d 505 (Tex.App.- -Dallas 200 3, pet. denied) ( applying de novo standar d in appellate review of order confirmi ng award but review ing ruling o n motion for new trial for abus e of discretion). Whiteside sought vacatur on three statuto ry gr

ounds: (1) th e arbitrator refused to hear evidence material to t he controver sy; (2) the arbitrator exceeded his power s; and (3) the award w

as obtained by

undue means. Tex. C iv. Prac

. & Rem. Code Ann. §6

171.088(a)(1), (3)(A), (3)(C) (Vernon 2005). His arguments in support of ea ch ground are based on the absence ofevidence of appellees’ deali ngs wi th the MHB fir m prior to W hiteside’s withd rawal f rom C HJ. He argue s the arbit rato r cou ld no t have dete rmined whether the CH J firm dissol ved or merg ed with M HB withou t evidence of the
c ommunic ations between appel lees and MHB, and rendition of an award w ithout any evidenc e on that i ssue exceeded the arbitrator ’s power s. Tex. Ci v. Prac. & Rem. Code Ann. § 171.088(3)(A) (Vernon 2005 ). Because, W hiteside contends, the evidence sought
was necessary

to the arbitr

ator’s deci sion, the refusal to consider it requir es vacatur

under section 171.088(a)(3) (C). The “u ndue means” on w hich he reli es is CHJ ’s “wi thholding of its dealings w ith MHB” over proper requests for

the documents. H e characteri zes this as fraudulent conduct w hich requi red vacatur under section 171.088(a)(1)

. Appellees primarily

rely on the submission agreement’s l imitation on the evidence to the partnershi p agreement and th e par ties’ stipulated facts. Whiteside presents no challen ge to the validit

y of the submiss ion agreement. He seeks to avoid the agreement’s evidentiarylimitation b y argui ng the “arbi trator is not limited to wha t the parties agr ee or what information he is giv

en,” citing sections 171.05 0 and 171.051 of the TGAA. He also cites Mewbourne Oil Co. v . Black burn , 793 S. W .2d 735 (Tex.App .–Ama rillo 199 0, orig. proceeding), for the proposit ion that the arbitrator

was “empowered to cause the discovery necessary to resolution of the issues b efore [him].” Id. at 737.
We reject Whiteside’s v iew that mi nimizes therole of the submis sion agreement

. An arbitrator

’s authority

arises from the agreement of the par ties. Peacock v. Wave Tec4 Indeed, had the arbitrat or disregarded the submission agreeme nt his award could

be subject to ch allenge on thebasis he exceeded his powers. See, e.g., Interna tional Union of Operati

ng Engineers v. Cooper Natur al Resources , 163 F.3d 916, 919 (5 th Cir. 1999) (hold ing ar bitra tor d id no t have authority to ignore the parties’ agreement in making award). 7 Pools, Inc. , 107 S.W.3d 631, 636 (Tex.App.–W aco 2003, no pet.). A purpo se of the TGAA is to ensure the enfor

ceability of arbitration agreements. See Tex. Civ. Pr ac. & Rem. Code Ann. § 171.001 (V er non 2005). Parti es have w ide latitude i n structuri ng an arbitr ation proceeding through thei r agreement. See TUCO , 912 S.W.2d at 314 (citing FAA ). Courts have given effect to arbitrati on agreementsaltering whether th e question of ar bitrabili ty is
one for the court or the arbitrator , First Opti ons of Chicago, Inc. v. Kaplan , 514 U.S. 938, 947, 115 S.Ct. 1920, 13 1 L.Ed.2d 985 (1995) , what procedural rules would appl y, Volt Informati on Sciences, Inc. v. Board of Tru stees of Le land Stanford Univ. , 489 U.S. 468, 477-78, 109 S.Ct. 1248, 10 3 L.Ed.2d 488 (1989) , and even thestandard for and ex tent of judicial review , Gateway Technologi es, Inc. v. MCI Telecommunicati ons Corp. , 64 F.3d 993, 996 (5 th Cir. 1995) ; Hughes Training, Inc. v. Cook, 254 F.3d 588, 590 (5 th Cir. 2001); Tanox, Inc. v. Aki

n, Gump, Str

auss, Hauer & Feld, L.L.P. , 1 0 5 S

. W. 3 d 244, 251 (Tex.App.–Hous ton [14 th Dist.] 2003, pet. denied) ( applying federal arbitr ation law)

. In view of the parties’ express agreement limiting the evidence to be consider ed by the arbitrator , the trial court did not err in decl ining to vacate the arbit rator’s aw ard on the grounds he exceeded his powers or refused to hear material evid ence by gi ving effect to the agreement. 4 See IPCO-G & C v. A.B. Chance Co. , 65 S.W.3d 252, 259 (Tex.App.– Houston [1 st Dist.] 2001, pet. denied) ( court rejec ted challeng e to award based on arbitrator’s refusal to consider post-hea ring evidence, relying on provisions of gover ning8

agreement

granting arbitrator

authority

to determine relevance of evidence). Neither the general provisi ons of the T GAA all owing arbitrators to authorizedepositions, § 171.050, and issue subpoenas , § 171.051, nor th e opinion in Mewbourne Oil suggest a contrary conclusion.
W hiteside’s third ground argues appellees’ “withhol ding” of informati on of dealings with MHB was

fraud requiring the tri al court to v acate the awar

d. He reli es on Karaha Bodas Co. v. Peru saha an Pe rtamb ang an Min yak Da n Gas Bumi Negara , 364 F.3d 274 (5 th Cir. 2004), cert. denied, 543 U.S. 917, 125S.Ct. 59, 160 L.Ed.2d 202 (2004 ), and Prestige Ford v. Ford Dea ler Com

puter Service s, Inc. , 324 F.3d 391 (5 th Cir. 2003) . In Karaha Bodas the court rec ited a three-p ronged test for determining if an arbitrat ion award was procured by fraud. Id. at 307. It req uires a movant to establi sh (1) the fraud by c lear and convinci ng evidence, ( 2) that it w as not discover

able before or during the arbi tration, and (3) the fraud material ly rela ted to an issue in the arbitration. Id. The issue in Prestige Ford concerned the pr

oduction of altered documents by a party in the cours e of an arbitrati on procee ding. The trial court and Fifth Circuit aff irmed the award because the arbitrato rs declined to compel producti on of the documents, cons idered the arg ument the documents had been altered and r

eached a decision i ndependent of the alleg ed fraud. Id. at 394-95. Under this r

ecord, neither

case supportsWhiteside’s first issue.
Whiteside contends he properly req uested the informati on through di scovery and itwas wrongly wit hheld by appellees. As evidence of his requests f or the records, Whiteside points to electronic mail exchanges. A March 2005 mess age to Whiteside from5 The same t est has been appli ed by at leas t one Texas cour t of appeals. See Henry , 100 S.W.3d at 510. 9 Huntaddressed several matters, including W hiteside’s request for information concerning his former partners’ dealings with MHB before Whiteside’s withdraw al from CHJ. A second message from Hu nt repre sented “the only contractual matter between CHJ and MH B” concerned the s ale of eq uipm ent a nd office suppl ies and denied k nowledge of other recordsor agreements

between the firms. That message also

declined to pr

ovide records concerning the other partners’ “individual entry into MHB[.]”
Assumi ng, without dec iding, that the test for fraud set ou t in Karaha Bodas is applicable under the TGAA, 5 the record her e does not establi sh the elements of that test

. Like in Karaha Bodas, the conduct W hiteside challenges was known before the arbitrat ion hearing, precluding him from satisfyin g the second element. Far from pursuing his outstanding re quest s at the arbit ration heari ng, Whiteside entered into t he submission agreement, including its ex press prov ision limi ting the ev idence to be cons idered. The agreement

negates his a ssertion that appellees “wrongly” withheld the records. See Karaha Bodas , 364 F.3d at 304 (noting r epresentation at conclusion of arbitration hearing that record had been “fully made ”).
W hiteside’s contention the arbitrator had no evi dence on whi ch to decide whet her the partners’ a ctions consti tuted a dissol ution or a merger w ith MHB w ithout examination of CHJ’s records of

“dealings ” with MHB is, at bottom, an attack on the sufficiency of the evidence on which the arbitrator based his de cision. H aving r eviewe d the entirety

of the materials presented the trial court, we find the cour t reasonably

could have co nsidered6 Subsection (a ) of 171.086 expr essly co mmits to the tri al cou rt’s disc retion prearbitration rulingson discovery an d “ot her relief.” Subsection (b ) does not indi cate any different standard sho uld apply to rulings made during or

after arbitrat ion. 10 Whi teside’ s arguments for vacatur as an eff ort to bootstrap an evidentiary suff iciency complaint

into a statutor

y ground for vacatur. See J. J. Gregory Gourmet Services, Inc. v. An to ne ’s Imp ort Co. , 92 7 S.W.2d 31, 33 (Tex.App.–Houston [1 stDist.] 1995, no writ) (absent statutory

ground to vacate arbitr ator’s award, a complaint about suf ficiency of the evidence to support the award prov ided the trial court no basi s on whic h to v a c a t e i t )

. We find the trial court did not err in r ejecting Whiteside’s g rounds for vacation of the awar d, and overrulehis first i ssue.
W hiteside’s second issue assigns error to the trial court’s fail ure to order produc tion
o f documents concerning dealings bet ween CHJ and MHB for in camera rev iew

. Whiteside points to the aut hority given atrial cour

t under secti on 171.086 of the TGAA to order disco very eve n af ter co nclu sion of t he ar bitra tion . Tex. Civ. Prac. & Rem. Code Ann. § 171. 086 (b). W e will a pply an abuse of di scretion standard to our r eview of the trial court’s d eni al of Whiteside’s motion to req uire the document production. 6 A court may abuse its discr

etion by ruli ng arbitr

arily, unreasonably

or wit hout reference to any guiding rules and principles, or wit hout supporting evidence. Bocquet v. He rring , 972 S.W.2d 19, 21 (Tex. 1998); Morrow v. H. E.B. , Inc ., 714 S.W.2d 297, 298 (Tex. 1986); Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1 985). Here, the cour t had before it the unchal lenged submis sion agreement limiting the evidence to be consider ed by the arbi trator. W e hold th e trial cou rt did no t err in dec lining W hiteside’ s motion to compel production of docum ents for in camera revie w a nd overrul e his second i ssue.7 Whiteside also filed a motion as king that we supplement the record in this appeal with “sealed” doc uments contained i n the record i n th e mandamus proceeding , In re Whiteside , N o . 0 7
- 0 6
- 0 0 7 8
- C V , 2 0 0 6 WL 1519430 (Tex.App.–A marillo June 6, 2006, o rig. proceeding) . That motion is granted. 11 W hiteside’s third iss ue recasts the argument pres ented in his second issue and is likewise overrule d, as is his pending motion seeki ng thesame relief in thi s Court. 7 Having overrul ed Whiteside’s issues, we affirm the judgment of the trial cour t.

James T. Campbell Justice