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Quickset Concrete, Inc. v. Roeschco Construction, Inc.

Court of Appeals of Texas, Fifth District, Dallas

September 13, 2017

QUICKSET CONCRETE, INC., Appellant
v.
ROESCHCO CONSTRUCTION, INC., Appellee

         On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-11847

          Before Justices Lang, Fillmore, and Schenck.

          MEMORANDUM OPINION ON REHEARING

          DOUGLAS S. LANG JUSTICE.

         On August 15, 2017, this Court issued an opinion affirming the trial court's judgment. Appellant Quickset Concrete, Inc. filed a timely motion for rehearing on August 22, 2017. We deny appellant's motion for rehearing. In addition, we withdraw our August 15, 2017 opinion and vacate the judgment of that date. This is now the opinion of the Court.

         This is an appeal from the trial court's judgment confirming an arbitration award of damages to appellee RoeschCo Construction, Inc. ("RCC"). In two issues, appellant asserts the trial court erred by denying its "Motion for New Trial and Motion to Modify Arbitration Holding" because: (1) there was an evident miscalculation in the arbitration award; and (2) the arbitrator exceeded his authority. RCC argues in response that appellant "has waived its right to a modification of the arbitration award" because it "failed to timely file a motion to vacate or modify the arbitration award."

         We decide against appellant on its issues. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.2, 47.4.

         I. Factual and Procedural Context

         This case involves a construction contract dispute. Appellant was a subcontractor for RCC on two construction projects, one of which, the "Trinity Strand Project, " is the subject of this case. On June 24, 2013, the parties signed a Master Subcontract Agreement ("MSA") which the parties agree governs the two subcontracts. The MSA provided that:

Subject to the limiting provisions set forth below, all claims, disputes and other matters in question between the Contractor and the Subcontractor that are not subject to Section 3F of this Subcontract, arising out of, or relating to this Subcontract or the breach thereof shall be decided by arbitration which shall be held in Dallas, Texas in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then in effect unless the parties mutually agree otherwise. The award rendered by the arbitrator(s) shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction.

         Appellant stopped work on the Trinity Strand Project in March 2014 before the project was completed. Appellant claimed RCC "breached the contract by wrongfully deducting $29, 000 from work performed and in creating a negative pay application and other grounds." RCC also claimed appellant breached the contract.

         On October 8, 2014, appellant filed suit. In its "First Amended Original Petition, " appellant requested monetary damages based on breach of contract and quantum meruit. On November 3, 2014, RCC filed its "Original Answer Subject to Its Motion to Abate and Compel Arbitration" and a separate "Motion to Abate and Compel Arbitration." In its "Motion to Abate and Compel Arbitration, " RCC sought enforcement of the arbitration provision in the MSA. On January 8, 2015, the trial court signed an "Agreed Order Granting Motion to Abate, " which abated the case "pending the outcome of an arbitration between the parties."

         The arbitration proceeding took place in January 2016. On March 1, 2016, the arbitrator rendered his written "Award of Arbitrator." In this award the arbitrator found, among other things, that "Appellant was not justified in abandoning the Trinity Strands Project" and that "RoeschCo is the 'Prevailing Party' as defined" in the contract. The arbitrator awarded $91, 240.00 in damages to RCC. On March 8, 2016, RCC filed in the trial court a "Motion to Lift Abatement and Application to Confirm Arbitration Award."

         On March 16, 2016, appellant filed, with the American Arbitration Association (AAA), "Claimant's Motion to Correct Award." In that motion appellant argued that it was the prevailing party, "was entitled to recover its legal fees and costs, " and that the arbitrator should "correct the award" and "enter judgment" for appellant as requested. On March 21, 2016, RCC responded to this motion by filing a "Response to Quick Set Concrete, Inc.'s Motion to Correct Award." Then, on March 23, 2016, appellant filed with the AAA its "Reply to Response of RoeschCo Construction Inc."

         Appellant did not file a response in the trial court to RCC's motion to confirm the arbitration award. So, on March 21, 2016, the trial court signed a final judgment. In that judgment, the trial court found appellant had not filed an application to vacate the arbitration award, the allegations in RCC's "Application to Confirm the Arbitration Award" were true and correct, and ...


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