Phillip Chen and Jiang Chen v. DFW Home Services, LLC D/B/A DFW

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-25-00620-CV
___________________________

PHILLIP CHEN AND JIANG CHEN, Appellants

V.

DFW HOME SERVICES, LLC D/B/A DFW IMPROVED, Appellee

On Appeal from the 67th District Court
Tarrant County, Texas
Trial Court No. 067-349646-24

Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

I. INTRODUCTION

Following an arbitrator’s final award in favor of Appellee DFW Home Services,

LLC d/b/a/ DFW Improved, Appellee moved to confirm the award, and Appellants

Philip and Jiang Chen moved to vacate the award. The trial court granted Appellee’s

motion and denied Appellants’ motion.

Appellants raise five appellate issues challenging the trial court’s order denying

their motion to vacate. Because they fail to present a sufficient record of the arbitral

proceeding to support their vacatur grounds and because they attempt to collaterally

attack the award with complaints that were not presented to the arbitrator, we will

affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In June and August of 2022, Appellants entered into two contracts with

Appellee for restoration work on their home.1 Appellee completed the restoration

work, but Appellants failed to fully make payment. Appellee recorded and perfected

an affidavit claiming a lien on Appellants’ property and sent them a written demand

for all amounts due and owing under the contracts. Appellants still did not make

payment.

1
Both contracts contained an arbitration provision and a venue clause
designating Collin County.

2
In January 2024, Appellee sued Appellants in Tarrant County,2 and they

answered with a general denial. Pursuant to the contracts’ arbitration provisions,

Appellee moved unopposed to compel arbitration, and the trial court granted an

agreed order compelling arbitration and staying the action.

Following a one-day hearing,3 the arbitrator found, among other things, that

Appellee was entitled to (1) contractual damages for its unpaid work, (2) foreclosure

of its lien, and (3) reasonable and necessary attorney’s fees. The arbitrator signed the

final award, and Appellee moved to confirm the award. Appellants responded that

they did “not object to the entry of judgment.”

But before the trial court ruled on Appellee’s motion to confirm, Appellants

moved to vacate the award, alleging that their rights had been prejudiced by the

arbitrator’s evident partiality and that the arbitrator had refused to postpone the

arbitration hearing after they showed sufficient cause for the postponement, refused

to hear evidence material to the controversy, or conducted the hearing contrary to

Texas Civil Practice and Remedies Code Sections 171.043–171.047. The motion did

not provide further explanation or include any evidence in support of these

2
Appellee brought claims for breach of contract, quantum meruit, violation of
the Texas Prompt Payment to Contractors and Subcontractors Act, foreclosure of
lien, and attorney’s fees and costs.
3
There is no transcript of the arbitration hearing.

3
allegations. The trial court denied Appellants’ motion to vacate and granted

Appellee’s motion to confirm.

Appellants then moved for a new trial, and alternatively, moved to modify,

correct, reform, or reconsider the judgment—reasserting the same allegations from

their motion to vacate.4 Appellee responded and argued that Appellants’ motion was

essentially another motion to vacate because it was a regurgitation of the same

previously asserted grounds and that they could not file another motion to vacate

because the award had already been confirmed. A hearing was conducted on

Appellants’ motion for new trial, but no evidence or new arguments were presented.

The trial court denied the motion for new trial, and Appellants filed this appeal.

III. STANDARD OF REVIEW

An arbitration award is conclusive on the parties as to all matters of fact and

law submitted to the arbitrator and has the effect of a judgment of a court of last

resort. See CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 238 (Tex. 2002). Accordingly,

judicial review of an arbitration award is extraordinarily narrow, and we may vacate an

arbitration award only in very unusual circumstances. See Oxford Health Plans LLC v.

Sutter, 569 U.S. 564, 568, 133 S. Ct. 2064, 2068 (2013); Rain CII Carbon, LLC v.

4
Appellants attached an affidavit from Appellant Philip Chen claiming—for the
first time—that the arbitrator had stated during the arbitration hearing, “This is a
fast[-]track arbitration, I do not get paid enough for this[,] and I do not have the time
to review your evidence.” No transcript of the arbitration hearing was attached to
support this claim.

4
ConocoPhillips Co., 674 F.3d 469, 472 (5th Cir. 2012); E. Tex. Salt Water Disposal Co. v.

Werline, 307 S.W.3d 267, 271 (Tex. 2010).

To protect the strong deference accorded to arbitration awards, we review a

trial court’s ruling to vacate or confirm an arbitration award de novo based on the

entire record. See Denbury Onshore, LLC v. Texcal Energy S. Tex., L.P., 513 S.W.3d 511,

515 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Royce Homes, L.P. v. Bates,

315 S.W.3d 77, 85 (Tex. App.—Houston [1st Dist.] 2010, no pet.). All reasonable

presumptions are indulged in favor of the award, and the challenging party bears the

burden to establish an allowable ground for vacatur. See Denbury Onshore, 513 S.W.3d

at 515; Amoco D.T. Co. v. Occidental Petroleum Corp., 343 S.W.3d 837, 841 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied). We must focus on the integrity of the

process—not the propriety of the result. See Ancor Holdings, LLC v. Peterson, Goldman

& Villani, Inc., 294 S.W.3d 818, 826 (Tex. App.—Dallas 2009, no pet.).

Additionally, the Texas Supreme Court has stated the requirements for the

arbitration record and for demonstrating error in an arbitration award:

A court must have a sufficient record of the arbitral proceedings, and
complaints must have been preserved, all as if the award were a court
judgment on appeal. For efficiency’s sake, arbitration proceedings are
often informal; procedural rules are relaxed, rules of evidence are not
followed, and no record is made. These aspects of arbitration, which are
key to reducing costs and delay in resolving disputes, must fall casualty
to the requirements for full judicial review. The parties can decide for
themselves whether the benefits are worth the additional cost and delay,
but the only review to which they can agree is the kind of review courts
conduct. If error cannot be demonstrated, an award must be presumed
correct.

5
Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 101–02 (Tex. 2011) (footnotes omitted).

IV. DISCUSSION

In five issues—four of which are raised for the first time on appeal—

Appellants challenge the trial court’s denial of their motion to vacate. For ease of

discussion, we will address Appellants’ issues out of order.

A. APPELLANTS’ GROUNDS FOR VACATUR

In their fourth issue, Appellants allege that “[t]he Arbitrator’s actions

necessitate vacating the award as the arbitrator demonstrated partiality [and]

misconduct,[5] and refused to hear evidence material to the controversy.”

1. Applicable Law

By default, “[u]nless grounds are offered for vacating, modifying, or correcting

an [arbitration] award,” the trial court “shall confirm the award.” Tex. Civ. Prac. &

Rem. Code Ann. § 171.087. The available grounds for vacating, modifying, or

correcting an arbitration award are statutorily delineated in the Texas Arbitration Act

5
Appellants now allege that their rights were also prejudiced by the arbitrator’s
alleged misconduct. See Tex. Civ. Prac. & Rem. Code Ann. § 171.088(a)(2)(C). But
their motion to vacate did not present this ground to the trial court, and thus it cannot
be raised on appeal. Saiz v. Susser Holdings Corp., No. 04-14-00487-CV, 2015 WL
1089605, at *2 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (“Any
ground for vacatur not presented to the trial court is waived and cannot be argued on
appeal.”); Tex. R. App. P. 33.1(a); see also Jefferson Cnty. v. Jefferson Cnty. Constables Ass’n,
546 S.W.3d 661, 665 (Tex. 2018) (questioning preservation and citing case law
“holding that a party seeking to vacate an arbitration award waives on appeal any
grounds not presented to the trial court”).

6
(TAA).6 See id. §§ 171.088, .091; Hilton v. Korrect Gen. Contracting, LLC, No. 02-20-

00337-CV, 2021 WL 4621761, at *2 (Tex. App.—Fort Worth Oct. 7, 2021, pet.

denied) (mem. op.) (noting that the statute “‘leaves no room for courts to expand on’

the grounds listed” for vacating or modifying an arbitration award (quoting Hoskins v.

Hoskins, 497 S.W.3d 490, 494 (Tex. 2016))).

Under the TAA, and as relevant here, a trial court must vacate an arbitration

award on application of a party if (1) the rights of a party were prejudiced by “evident

partiality by an arbitrator appointed as a neutral arbitrator” or (2) the arbitrator

“refused to hear evidence material to the controversy” or “conducted the hearing,

contrary to Section 171.043, . . . 171.045, . . . or 171.047, in a manner that substantially

prejudiced the rights of a party.” See Tex. Civ. Prac. & Rem. Code Ann.

§ 171.088(a)(2)–(3). Otherwise, the default rule applies, and the trial court “shall

confirm the award.” Id. § 171.087.

2. Appellants Present an Insufficient Record

Appellants’ motion to vacate states as follows:

The arbitration award should be vacated for the following reasons:

a. the rights of a party were prejudiced by –

6
The applicability of the TAA to this case is not reasonably in doubt. Neither
party has questioned the TAA’s applicability; to the contrary, the parties’ briefing
reflects their assumption that this case is, in fact, governed by the TAA. Further, this
case does not fall within any of the statutory exceptions to the TAA’s applicability set
forth in Section 171.002(a) of the Texas Civil Practice and Remedies Code. See id.
§ 171.002(a).

7
1. evident partiality by an arbitrator appointed as a neutral
arbitrator.

b. the arbitrator –

1. refused to postpone the hearing after a showing of sufficient
cause for the postponement;[7]

2. refused to hear evidence material to the controversy; or

3. conducted the hearing, contrary to Civil Practice and Remedies
Code [S]ection 171.043, 171.044, 171.045, 171.046, or 171.047, in
a manner that substantially prejudiced . . . the rights of a party.

The motion does not include a record of the documents and the proceedings

before the arbitrator, attach any exhibits, or otherwise offer any explanation

whatsoever of (1) how the arbitrator demonstrated evident partiality, (2) what

evidence the arbitrator refused to consider, or (3) how the arbitrator conducted the

hearing contrary to the Texas Civil Practice and Remedies Code.8

7
Appellants have abandoned this ground on appeal.
8
Following the trial court’s denial of their motion to vacate, Appellants moved
for a new trial and attached an affidavit from Appellant Philip Chen, wherein he
claimed that the arbitrator told him at the arbitration hearing that he (the arbitrator)
did not have time to consider Appellants’ evidence. But parties may not rely on
exhibits attached to the pleadings before the trial court, or more specifically their
motion to vacate, for evidentiary purposes absent their admission into evidence. See
Shah, 580 S.W.3d at 265–66 (declining to consider exhibits attached to motion to
vacate); see also Gordon v. Trucking Res. Inc., No. 05-21-00746-CV, 2022 WL 16945913,
at *6 (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.) (stating that there was no
record of the arbitration proceedings except the arbitration award and that although
the motion to vacate purported to provide the background and procedural history of
the arbitration, that description did not constitute a record of the documents and the
proceedings before the arbitrator, nor was it evidence that could be considered by the

8
As noted, no record was made of the arbitration hearing. Without a record

from the hearing, we must presume that the evidence was adequate to support the

award. See Nafta Traders, 339 S.W.3d at 102; Shah v. Star Anesthesia, P.A., 580 S.W.3d

260, 265 (Tex. App.—San Antonio 2019, no pet.) (“When there is no transcript of the

arbitration hearing, the appellate court will presume the evidence was adequate to

support the award.” (quoting GJR Mgmt. Holdings L.P. v. Jack Raus, Ltd., 126 S.W.3d

257, 263–64 (Tex. App.—San Antonio 2003, pet. denied))). Appellants do not argue

that their vacatur grounds can be decided without a record from the arbitration

hearing.

We are at a loss for how Appellants expect us to review these grounds without

a record of the hearing.9 As the Dallas Court of Appeals stated in ZTE Corp. v.

Universal Telephone Exchange, Inc., “Again, with no record of the arbitration hearing

proceedings before us, we do not know what evidence [Appellants] presented to the

arbitrator nor can we review the arbitrator’s conduct in connection with this

complaint.” No. 05-17-00781-CV, 2018 WL 6039694, at *6 (Tex. App.—Dallas

trial court or appellate court). Philip’s affidavit does not constitute a record of the
documents and the proceedings before the arbitrator, nor is it evidence that we can
consider.
9
As a foreshadow of their other appellate issues, here, Appellants attempt to
raise arguments that were not presented to the trial court. For example, they now
contend that the arbitrator was evidently partial because he determined that Appellee’s
lien was proper and because he addressed only Appellee’s claims. But as shown
above, Appellants did not present these arguments to the trial court, and thus they
cannot be raised for the first time on appeal.

9
Nov.19, 2018, pet. denied) (mem. op.). Thus, we must presume that the arbitration

award is correct. Accordingly, because Appellants failed to meet their burden to bring

forward a record of the arbitration hearing, we hold that the record lacks sufficient

evidence to support their claims that the arbitrator demonstrated evident partiality,

refused to hear evidence, or conducted the hearing contrary to the Texas Civil

Practice and Remedies Code. See Nafta Traders, 339 S.W.3d at 102; Shah, 580 S.W.3d

at 265.

We overrule Appellants’ fourth issue.

B. APPELLANTS’ WAIVED ISSUES

In Appellants’ four other issues, they complain that (1) “Appellee’s actions are

barred by the doctrine of compulsory counterclaims,” (2) “the foreclosure of the

homestead estate [was] improper” because Appellee’s lien was defective, (3) “the trial

courts of Collin County have mandatory venue to hear this matter,” and (4) “the

arbitrator’s award[ed] attorney’s fees were not reasonable nor necessary.” But none of

these complaints were presented to the arbitrator—or the trial court for that matter.10

10
It is a prerequisite to appeal that the record must show that the complaints on
appeal were preserved for appellate review—meaning that they were made to the trial
court by a timely request, objection, or motion and that the trial court either ruled on
the request, objection, or motion, either expressly or implicitly, or refused to rule and
that the complaining party objected to the refusal. Tex. R. App. P. 33.1(a); Alikhan v.
Alikhan, No. 03-19-00515-CV, 2021 WL 3085844, at *3 (Tex. App.—Austin July 22,
2021, pet. denied) (mem. op.). As stated by the Alikhan court,

“Important prudential considerations underscore” this rule of
preservation, . . . B.L.D., 113 S.W.3d 340, 350 (Tex. 2003), making this

10
“Error preservation is not unique to trial proceedings; a party challenging an

arbitration award on appeal must first raise a timely objection with the arbitrator just

‘as if the award were a court judgment on appeal.’” Superior Healthplan, Inc. v. Legacy

Home Health Agency, Inc., No. 13-20-00160-CV, 2022 WL 868530, at *2 (Tex. App.—

Corpus Christi–Edinburg Mar. 24, 2022, no pet.) (quoting Nafta Traders, 339 S.W.3d

at 101). As the Texas Supreme Court has explained, the principles for error

preservation set forth in Rules 33 and 34 of the Texas Rules of Appellate Procedure

govern appeals from arbitration awards. Nafta Traders, 339 S.W.3d at 101 n.80.

rule “technical, but not trivial,” USAA Tex. Lloyds Co. v. Menchaca,
545 S.W.3d 479, 518 (Tex. 2018) (quoting Burbage v. Burbage, 447 S.W.3d
249, 258 (Tex. 2014)). “This rule ‘conserves judicial resources by giving
trial courts an opportunity to correct an error before an appeal
proceeds,’ promotes ‘fairness among litigants’ by prohibiting them from
surprising their opponents on appeal, and furthers ‘the goal of accuracy
in judicial decision-making’ by allowing the parties to ‘develop and refine
their arguments’ and allowing the trial court to ‘analyze the questions at
issue.’” Id. at 510 (quoting In re B.L.D., 113 S.W.3d at 350); see Cruz v.
Andrews Restoration, Inc., 364 S.W.3d 817, 830 (Tex. 2012) (“Failing to
[preserve error] squanders judicial resources, decreases the accuracy of
trial court judgments and wastes time the judge, jurors, lawyers, and
parties have devoted to the case.”). “The core principle underlying
error-preservation requirements is that the trial court should be given the
opportunity to correct potential errors before the case proceeds on appeal.” Majeed v.
Hussain, No. 03-08-00679-CV, 2010 WL 4137472, at *3 (Tex. App.—
Austin Oct. 22, 2010, no pet.) (mem. op.) (citing In re C.O.S., 988 S.W.2d
760, 765 (Tex. 1999)).

2021 WL 3085844, at *3 (emphasis added). Here, other than the motion for new trial
that merely repeats the grounds listed in the motion to vacate, the record is
completely devoid of any objections made to the trial court, and Appellants attempt
to complain of issues that they never raised below.

11
Therefore, by failing to raise an objection with the arbitrator, a party waives the issue.

Quinn v. Nafta Traders, Inc., 360 S.W.3d 713, 719–20 (Tex. App.—Dallas 2012, pet.

denied) (holding on remand that Nafta waived certain points by failing to present

them to the arbitrator); Superior Healthplan, Inc., 2022 WL 868530, at *2. As one of our

sister courts has observed, “[A] party should not be able to sit idle through an

arbitration and then, after an adverse result, collaterally attack that procedure on

grounds never presented to the arbitrator.” Quinn, 360 S.W.3d at 719.

Here, these four complaints were never presented to the arbitrator or to the

trial court.11 Thus, these issues amount to an impermissible collateral attack on the

arbitration award. See Quinn, 360 S.W.3d at 719. Accordingly, having failed to raise

11
While the appellate record does not contain a record of the arguments and
evidence presented to the arbitrator, Appellee repeatedly asserted in its response brief
that these issues are not preserved for appellate review because Appellants made no
such objections. Appellants did not dispute this assertion in their reply brief. Because
Appellee’s assertion was unchallenged, we can accept it as true. See Rancher v. Franks,
269 S.W.2d 926, 927–28 (Tex. Civ. App.—Fort Worth 1954, no writ) (“In her brief
appellant says that appellees filed no motion for judgment non obstante veredicto.
Since that statement is unchallenged, this Court is not required to look to the record
but may accept appellant’s statements as true.”); see also Owens–Corning Fiberglas Corp. v.
Schmidt, 935 S.W.2d 520, 525 (Tex. App.—Beaumont 1996, writ denied) (“[E]ven
though there is no proof supporting OCF’s settlement credit claim, we accept as true
the unchallenged fact statements contained in its brief). Further, the fact that the
arbitrator’s award does not address any of these issues supports Appellee’s assertion
that they were never raised in arbitration. In any event, because the “party seeking to
vacate an arbitration award bears the burden of presenting a complete record that
establishes grounds for vacatur,” it was incumbent upon Appellants to show that they
preserved these issues by raising a timely objection with the arbitrator. Amoco D.T.,
343 S.W.3d at 841. Appellants failed to make such a showing.

12
these complaints with the arbitrator, we hold that Appellants have failed to preserve

these four issues for our review.12

We overrule Appellants’ first, second, third, and fifth issues.

V. CONCLUSION

Having overruled Appellants’ five issues, we affirm the trial court’s judgment.

/s/ Brian Walker

Brian Walker
Justice

Delivered: April 30, 2025

12
Moreover, even if Appellants had preserved these issues, because they are not
valid statutory grounds for vacating an arbitration award, we would nevertheless
affirm the trial court’s judgment. See Tex. Civ. Prac. & Rem. Code Ann. § 171.088(a);
Hilton, 2021 WL 4621761, at *2.

13