Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-11847
Justices Lang, Fillmore, and Schenck.
MEMORANDUM OPINION ON REHEARING
DOUGLAS S. LANG JUSTICE.
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.
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
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.
Factual and Procedural Context
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
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
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.
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."
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."
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."
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 ...