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Shopoff Advisors, L.P. v. Atrium Circle, GP

Court of Appeals of Texas, Fourth District, San Antonio

January 3, 2018

SHOPOFF ADVISORS, L.P., Appellant
v.
ATRIUM CIRCLE, GP, et al., [1] Appellees

          From the 37th Judicial District Court, Bexar County, Texas[1] Trial Court No. 2016CI04489 Honorable Antonia Arteaga, Judge Presiding

          Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Patricia O. Alvarez, Justice

         Shopoff Advisors, L.P. appeals the trial court's judgment confirming an arbitration award.[2] Shopoff contends the trial court erred by granting the appellees' motion to confirm the arbitration award without considering its pending motion to vacate. Shopoff also contends the trial court erred by entering a judgment that does not conform to the arbitration award. We modify the portion of the judgment setting forth the amount to be distributed to Shopoff from the deposit at the title company, and we affirm the judgment as modified.

         Background

         After a four-day arbitration hearing, a panel of arbitrators issued a final award on March 29, 2017. On April 4, 2017, the appellees filed a motion to confirm the award which was set for a hearing on April 12, 2017.

         On April 6, 2017, Shopoff filed a first amended original petition and response to motion to confirm. On April 11, 2017, Shopoff filed a second amended petition and motion to vacate.

         On April 12, 2017, a hearing was held on the appellees' motion to confirm. At the hearing, Shopoff's attorney conceded its motion to vacate was not set, but he argued section 171.088(c) of the Texas Arbitration Act (TAA) precluded the trial court from hearing the motion to confirm before hearing the motion to vacate. When the trial court ruled the hearing on the motion to confirm would proceed, Shopoff's attorney made a verbal motion for continuance, asking the trial court to postpone the hearing for a week and then hear both motions together. The trial court denied the continuance. At the conclusion of the hearing, the trial court granted the motion to confirm and signed a final judgment. Shopoff appeals.

         Standard of Review

         We review a trial court's decision to confirm an arbitration award under a de novo standard of review. Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511, 515 (Tex. App.-Houston [14th Dist.] 2016, no pet.); SSP Holdings Ltd. P'ship v. Lopez, 432 S.W.3d 487, 492 (Tex. App.-San Antonio 2014, pet. denied). "In a de novo review, the trial court's decision is given no deference." Lopez, 432 S.W.3d at 492.

          Pending Motion to Vacate

         In its first issue, Shopoff contends the trial court erred by granting the appellees' motion to confirm the arbitration award without considering its pending motion to vacate. Specifically, Shopoff asserts, "[i]f a motion to vacate an arbitration award is filed prior to confirmation of the award and within the 90 day limitations period, " the trial court cannot "skip over the motion to vacate and proceed straight to confirming the award." Therefore, Shopoff contends "the trial court erred by holding a hearing on [the appellees'] motion to confirm ahead of Shopoff's motion to vacate, and by denying Shopoff's request for a continuance to hear the motions together."

         The appellees respond the trial court did not err because Shopoff did not set a hearing on its motion to vacate. In addition, the appellees contend Shopoff waived any error ...


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