Opinion
No. 04-05-00487-CV
Delivered and Filed: January 4, 2006.
Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-05451, Honorable Janet P. Littlejohn, Judge Presiding.
Affirmed in Part; Reversed in Part.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Sondra Kahlig is before this court for a second time appealing a trial court's judgment confirming various arbitration awards. See In re C.A.K., 155 S.W.3d 554, 559-562 (Tex.App.-San Antonio 2004, pet. denied) (affirming judgment on first appeal). In this appeal, Sondra contends that the trial court erred in refusing to hold a hearing to determine if the awards were in the best interest of C.A.K. and in finding that the arbitrator had not exceeded his authority. We reverse the portion of the trial court's judgment confirming the arbitration award ordering Sondra to pay $105,200.19 to her own attorneys, Henslee, Fowler, Hepworth Schwartz. We affirm the remainder of the trial court's judgment.
1. In her first and second issues, Sondra asserts that the trial court erred in refusing to hold a hearing to determine if the arbitration awards were in the best interest of C.A.K. We addressed this contention in Sondra's first appeal, holding that the parties agreed in the arbitration agreement to expressly waive their right "to assert the arbitrator's decisions are not in the best interest of the child and to seek judicial review." Id. at 560. We further held that such a waiver was not contrary to public policy. Id. at 560-61. Accordingly, Sondra has waived her right to require the trial court to hold a best interest hearing, and her first and second issues are overruled.
2. If an arbitrator exceeds his powers, the trial court is required to vacate the arbitration award. Tex. Civ. Prac. Rem. Code Ann. § 171.088(a)(3)(A) (Vernon 2005). Sondra contends that the arbitrator exceeded his powers by: (1) ordering her to pay the fees owed to her own attorneys; (2) allowing an offset against a payment due to her under the divorce decree if she failed to pay portions of the arbitration award; and (3) requiring any party to seek leave from the arbitrator before filing any complaint or grievance against a treating mental health care professional.
Although the arbitrator's award included an offset in the nature described in Sondra's brief, the trial court's judgment did not confirm the provision allowing the offset. Accordingly, this complaint is without merit.
With regard to the portion of the award requiring leave to file complaints against mental health care professionals, the parties agreed that the arbitrator "shall make by binding arbitration award any modification of possession or the rights and duties of [the parties] that would be in the best interest of the child, [C.A.K.]." Thus, the agreement broadly authorizes the arbitrator to make any modification to Sondra's rights that would be in C.A.K.'s best interests. Given the number of mental health care professionals involved in C.A.K.'s care and given the potential disruption in care that a grievance could cause, the trial court did not err in finding that the arbitrator had the authority to modify Sondra's right to file grievances because such modification was in C.A.K.'s best interests. See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 754 (Tex. 2001) (noting any doubts regarding scope of arbitration are resolved in favor of coverage); Associated Glass, Ltd. v. Eye Ten Oaks Investments, Ltd., 147 S.W.3d 507, 512 (Tex.App.-San Antonio 2004, no pet.) (same).
Finally, however, with regard to the portion of the trial court's judgment confirming the arbitrator's award ordering Sondra to pay her own attorneys' fees, arbitrators are only permitted to award attorneys' fees as additional sums if the fees are provided for in the agreement to arbitrate. Tex. Civ. Prac. Rem. Code Ann. § 171.048 (c)(1) (Vernon 2005). In this case, the agreement expressly provides that the arbitrator "may make a binding arbitration award requiring either party to pay costs, legal fees or expert fees of the other party." The attorneys seeking to defend this portion of the arbitrator's award assert that the fees were properly awarded because requiring Sondra to pay the attorneys' fees would be modifying a duty that is in the best interest of the child. The attorneys reason that requiring Sondra to pay the fees would "promote stability in the legal proceedings" and "help achieve the finality and respite from litigation." Although we agree that the on-going legal battle is likely disruptive to C.A.K., section 171.048(c)(1) only permits the arbitrator to award attorneys' fees that are provided for in the agreement to arbitrate. In this case, the agreement to arbitrate only permits an award to pay the legal fees of the other party. Accordingly, the arbitrator exceeded his authority in ordering Sondra to pay her own attorneys' fees. See Barsness v. Scott, 126 S.W.3d 232, 241 (Tex.App.-San Antonio 2003, pet. denied) (noting arbitrators exceed authority by deciding matters not properly before them).
The portion of the trial court's judgment confirming the arbitration award ordering Sondra to pay her own attorneys, Henslee, Fowler, Hepworth Schwartz, the sum of $105,200.19 is reversed, and that portion of the judgment is deleted. The remainder of the trial court's judgment is affirmed.