United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
this Court are Plaintiff's Motion to Vacate Final
Arbitration Award, filed August 7, 2019 (Dkt. No. 5);
Accordant Communications, LLC's Opposition to Sayers
Construction, LLC's Motion to Vacate Final Arbitration
Award, filed August 29, 2019 (Dkt. No. 8); and
Plaintiff's Reply, filed September 12, 2019 (Dkt. No.
October 31, 2019, the District Court referred the above
motion to the undersigned Magistrate Judge for Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1),
Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C
of the Local Rules of the United States District Court for
the Western District of Texas.
The Arbitration Proceeding
Communications, LLC (“Accordant”) is a limited
liability company organized under the laws of Georgia with
its principal place of business in Seminole County, Florida.
Sayers Construction, LLC (“Sayers”) is a limited
liability company organized under the laws of Texas with its
principal place of business in Travis County, Texas. Pursuant
to the parties' Master Service Agreement
(“MSA”),  Accordant performed work as an electric
utility subcontractor for Sayers, the general contractor, in
South Florida between 2016 and 2017.
contained an arbitration clause requiring the parties to
submit “all disputes to arbitration in accordance with
the prevailing rules of the American Arbitration Association
for the Construction Industry.” Dkt. No. 1-1 at ¶
38 (“Arbitration Clause”). The MSA also provided
that the prevailing party would be entitled to reimbursement
for all reasonable costs and expenses, including
attorney's fees. Id. at ¶ 39. The MSA
further provided that the arbitrator's decision
“shall be final and judgment may be entered upon it in
accordance with the applicable law in any Court having
jurisdiction thereof.” Id. at ¶ 38.
alleges that Sayers failed to pay Accordant for its work
performed under the MSA. Accordingly, on December 6, 2017,
Accordant filed an arbitration proceeding with the American
Arbitration Association against Sayers, asserting claims for
breach of contract, quantum meruit, and fraud.
See Dkt. No. 1-2 at p. 4 (the “Arbitration
Proceeding”). In response, Sayers asserted
counterclaims for breach of contract and requested
March 22, 2019, after conducting a 19-day hearing on the
matter, the Arbitrator issued his “Partial Award”
finding that Accordant was the prevailing party in the
proceeding and awarded Accordant $459, 392.09 in monetary
damages, “plus an amount to be determined by the
Arbitrator for interest, reasonable costs, expenses and
attorney's fees.” Id. at p. 41, 43. The
Arbitrator also found that Sayers should recover nothing on
its counterclaims. He ordered the parties to submit briefing
on the issue of attorney's fees, costs, expenses, and
interest. Id. at p. 41-42.
filed its Application for Fees requesting $825, 165.00 in
attorney's fees, as well as other costs and expenses.
See Dkt. No. 5-6. Sayers objected to the fee
request, arguing that Accordant should not be awarded
attorney's fees under the Agreement because the MSA only
permits the reimbursement of attorney's fees.
Because Accordant had a contingency fee arrangement with its
attorneys, Sayers argued, it could not be reimbursed for
attorney's fees it never paid. Dkt. No. 5-7 at p. 2-3.
The Arbitrator rejected this argument, finding that Accordant
was entitled to the recovery of fees under the MSA and Texas
law. Dkt. No. 1-2 at p. 4. Thus, on May 9, 2019, the
Arbitrator issued his Final Award, awarding Accordant $793,
565 in attorney's fees, $12, 989.04 in litigation costs,
$72, 250 in arbitration expenses, and $59, 240.58 in
prejudgment interest. Id. at p. 6. The Final Award
also stated that: “This Award is in full settlement of
all claims and counterclaims submitted to this Arbitration.
All claims not expressly granted herein are hereby
denied.” Id. at p. 6.
April 10, 2019, before the Arbitrator issued his Final Award,
Accordant filed its lawsuit against Sayers seeking to confirm
the Partial Arbitration Award. See Accordant
Communications, LLC v. Sayers Construction, LLC,
1:19-CV-401 LY (W.D. Tex. Apr. 10, 2019)
(“Accordant's Lawsuit”). Accordant's
“Application to Confirm Arbitration Award” sought
to confirm the Partial Award and notified the Court that it
“will amend this application upon entry of an award for
attorney's fees, costs, expenses, and interest.”
Id. at Dkt. No. 1 at ¶ 10. On May 9, 2019,
Accordant filed its Amended Application to Confirm
Arbitration Award, asking the Court to affirm the Final Award
in favor of Accordant in the amount of “$1, 397,
436.71, plus post-judgment interest and post-award interest
to be determined by the Court.” Id. at Dkt.
No. 7 at p. 3.
23, 2019, Sayers filed a motion to dismiss Accordant's
Lawsuit under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction. On September 18, 2019,
the undersigned issued a Report and Recommendation
recommending that the District Court deny Sayers' motion
to dismiss and grant Accordant's Amended Application to
Confirm the Final Arbitration Award. See Id. at Dkt.
No. 19. The District Court has not yet ruled on the Report
The Instant Lawsuit
months after Accordant filed its lawsuit, Sayers filed the
instant lawsuit against Accordant seeking to vacate the Final
Award. Sayers argues that the Final Award must be vacated
“because the Arbitrator exceeded his powers by awarding
nearly $800, 000 in attorneys' fees that were neither
incurred nor paid by Accordant.” Dkt. No. 5 at p. 3. As
Sayers argued before the Arbitrator, it contends that
Accordant is not entitled to the recovery of any
attorney's fees because the MSA permits only the
reimbursement of attorney's fees, and Accordant
cannot be reimbursed for fees it never paid. Accordingly,
Sayers argues that the Arbitrator exceeded his powers in
awarding attorney's fees in this case and the Arbitration
Award must be vacated.
response, Accordant argues that attorney's fees are
permitted under the MSA, the Arbitrator expressly rejected
Sayers' arguments regarding attorney's fees, and
Sayers is attempting to have the Court review the