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City of Arlington v. Kovacs

Court of Appeals of Texas, Second District, Fort Worth

June 21, 2018

CITY OF ARLINGTON APPELLANT
v.
TIBOR KOVACS APPELLEE

          FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 048-261269-12

          PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH CHIEF JUSTICE

         I. Introduction

         Appellee Tibor Kovacs was initially terminated from the Arlington Police Department (APD) for violating a number of personnel rules, but an arbitrator later reinstated him. City of Arlington v. Kovacs, 508 S.W.3d 472, 473 (Tex. App.-Fort Worth 2015, pet. denied). The trial court confirmed the arbitration award, and Appellant the City of Arlington appealed, asking this court to determine whether the arbitrator had exceeded his authority by relying on evidence of events that occurred after the City terminated Kovacs. Id. at 473, 480. We decided that the arbitrator had exceeded his authority to resolve the dispute because the City's personnel manual limited the extent to which the arbitrator could consider post-termination evidence and because the arbitrator's written decision confirmed that he had improperly considered post-termination evidence in determining whether Kovacs had violated the personnel rules as charged. Id. at 473, 479. Accordingly, we reversed the trial court's judgment and remanded the case to the trial court for further proceedings. Id. at 480.

         On remand, Kovacs asked the trial court to send the matter to the arbitrator for reconsideration and argued that "[t]he Court of Appeals was wrong on several fronts." The City opposed Kovacs's motion and asked the trial court to vacate the arbitrator's award and to enter a final judgment for the City.

         The trial court vacated the award and remanded the case to the original arbitrator for rehearing. Kovacs moved to modify the trial court's order of remand and to affirm the original arbitration award; he also requested findings of fact and conclusions of law. The trial court declined both requests. Each party filed a notice of appeal to this court.[2] We may consider the record from the first appeal in considering this second appeal. See Humphries v. Humphries, 349 S.W.3d 817, 820 n.1 (Tex. App.-Tyler 2011, pet. denied).

         In a single issue, the City asks us to determine whether the trial court erred by remanding the case for a new arbitration before the original arbitrator, arguing that the arbitration agreement only contemplates that the award may be set aside. In the first three of his four cross-issues, Kovacs attempts to revisit issues decided in the first appeal, [3] and in his fourth cross-issue, he objects to the trial court's denial of his request for findings of fact and conclusions of law. We affirm the trial court's judgment.

         II. Discussion

         As set out in our prior opinion, in 2010 and 2011, APD charged Kovacs with having violated City personnel manual rules and then fired him. See Kovacs, 508 S.W.3d at 473-74.

         Although Kovacs argues in his second cross-issue that he was not officially terminated until after the conclusion of an administrative appeal in May 2011, Kovacs was notified of his proposed dismissal by Acting Police Chief Will Johnson on January 21, 2011, and given two days to file a response. In the January 21, 2011 notice, Kovacs was informed that if the acting chief decided that dismissal remained appropriate after reviewing his response, the dismissal would "become effective immediately following [that] decision" and Kovacs could then pursue a formal appeal to Police Chief Theron L. Bowman. Accordingly, we overrule Kovacs's second cross-issue to the extent it is not otherwise barred by our previous opinion pursuant to the law-of-the-case doctrine.

         Kovacs unsuccessfully attempted the administrative appeal and then requested that the termination decision be reviewed by arbitration. Id. at 474. The arbitrator acknowledged that he was limited by the City's personnel manual to determining whether Kovacs violated the personnel rules "as charged"[4] and whether the disciplinary action was reasonable. Id. at 474. In his written decision, the arbitrator concluded that-based on events occurring after Kovacs's termination[5]-the City had failed to establish by a preponderance of the evidence the most serious charges. Id. at 474-75. Thus, the arbitrator determined that Kovacs should be reinstated, given a twenty-day suspension, and awarded back pay. Id. at 475.

         Pursuant to the personnel manual, the City filed a petition in district court seeking to vacate the arbitrator's award on the ground that the arbitrator had exceeded his authority by improperly relying on evidence that was unavailable at the time that Kovacs was fired in January 2011. Id.

         The trial court determined that Kovacs was not entitled to back pay during the time he was incarcerated but otherwise confirmed the award, and the City appealed to this court, raising the same argument as to the arbitrator's having exceeded his authority. Id. We agreed, reversed the trial court's judgment confirming the ...


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