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Brust v. MBNA America Bank

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH


May 5, 2005

CONNIE L. BRUST APPELLANT
v.
MBNA AMERICA BANK, N.A. APPELLEE

FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY.

Panel A: Cayce, C.J.; Holman, J.; and Sam J. Day, J. (Retired, Sitting by Assignment).

Per curiam.

MEMORANDUM OPINION*fn1

Connie L. Brust appeals from the trial court's confirmation of an arbitration award in favor of MBNA America Bank, N.A. In two issues, Brust complains that the trial court erred in granting MBNA's motion to confirm the arbitration award and abused its discretion by striking Brust's discovery requests. We will affirm.

In 2002, MBNA submitted its claim against Brust for credit card debt to the National Arbitration Forum (NAF) for arbitration. Although NAF provided Brust notice of the arbitration proceeding, she did not participate in the arbitration. On January 28, 2003, the arbitrator found that an agreement to arbitrate existed and issued MBNA an award for $16,295.90.

MBNA moved to confirm the arbitration award under the Federal Arbitration Act.*fn2 In response, Brust denied that an agreement to arbitrate existed and asserted that confirming the arbitration award would violate her constitutional rights. Brust also sought discovery from MBNA. MBNA filed a motion to strike Brust's discovery requests, which the trial court granted. In addition, after a hearing, the trial court granted MBNA's motion to confirm the arbitration award. This appeal followed.

In her first issue, Brust asserts that the trial court erred by confirming the arbitration award because there is no evidence that she ever agreed to submit to arbitration. In her second issue, Brust contends that the trial court abused its discretion by striking her discovery requests.

We apply a de novo standard of review to the trial court's confirmation of an arbitration award under the FAA.*fn3

The nonexistence of an arbitration agreement is not one of the grounds upon which an arbitration award may be vacated under the FAA.*fn4 Further, a party seeking to vacate an arbitration award thereunder must do so within three months after the award is filed or delivered.*fn5 In this case, the arbitration award was filed on January 28, 2003, but Brust did not seek to vacate it until nearly seven months later, on August 22, 2003. Therefore, Brust's attempts to vacate the arbitration award under the FAA are time-barred.*fn6

Brust contends, however, that she can also challenge the arbitration award on common-law public policy grounds.*fn7 She asserts that, to confirm the arbitration award without a court of law determining whether a valid agreement to arbitrate existed between her and MBNA, and without allowing her to conduct discovery concerning the existence of such an agreement, violates her rights to due process and due course of law under the United States and Texas Constitutions, respectively.*fn8

But a court of law has determined that an agreement to arbitrate existed between the parties. In its findings of fact, the trial court found that Brust and MBNA had an agreement to arbitrate under the MBNA cardholder agreement, and the record supports this finding. Burst's own evidence shows that she had opened two credit card accounts with MBNA in 1999, one of which had a balance of $13,259 and a monthly payment of $177 in June 2001. In addition, MBNA attached a copy of the arbitration provision in its cardholder agreement, supported by the affidavit of its attorney who was the records custodian for Brust's MBNA account, to its motion to confirm the award.

The FAA does not require that arbitration clauses be signed, so long as they are written and agreed to by the parties.*fn9 In this case, although Brust averred by affidavit that she had never entered into an arbitration agreement with MBNA, her use of her MBNA credit card was evidence of her agreement to the arbitration provision in the cardholder agreement.*fn10 Accordingly, the trial court did not err by confirming the arbitration award.*fn11

Further, because the record supports the trial court's finding regarding the agreement to arbitrate, the court did not abuse its discretion by striking Brust's discovery requests.*fn12 We overrule Brust's issues and affirm the trial court's judgment.


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