In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00243-CV
GORDON EUGENE BELL, APPELLANT
V.
GARY HARRELL, JAN BELL, TONY NAJAR, JILL NAJAR, KARLA DRAKE, AND BELL REALTY, APPELLEES
On Appeal from the 459th District Court Travis County, Texas Trial Court No. D-1-GN-18-004630, Honorable J. David Phillips, Presiding
June 14, 2022 OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
This appeal involves a dispute between family members and an ensuing
arbitration. Despite having sought the appointment of an arbitrator, Gordon Eugene Bell
now attacks the trial court’s subject-matter jurisdiction to compel arbitration. The identity
of the arbitrator appointed and attorney’s fees assessed by the trial court underlie his other two issues. Gary Harrell, Jan Bell, Tony Najar, Jill Najar, Karla Drake, and Bell
Realty (the Harrell Group) ask us to affirm the trial court. We accede to that request.1
Jurisdiction
We first address subject-matter jurisdiction to order arbitration. Bell contends that
the trial court lacked it. The nature of his complaint is best summarized by his own words:
In this case, the arbitration agreement was contained in a Settlement Agreement which arose from litigation in New Mexico with New Mexico parties. Further, the Settlement Agreement provided that the New Mexico court had continuing jurisdiction over the settlement agreement. In this case, there was no agreement to arbitrate in this state as required by Section 171.081 of the Texas Civil Practice and Remedies Code. As such, the Texas court did not have jurisdiction to compel arbitration. Instead, jurisdiction remained in New Mexico and the trial court’s Final Judgment confirming the arbitration award is void and should be vacated.
We overrule the issue for the following reasons.
First, Bell and the Harrell Group have a contumacious history. It resulted in
litigation and the Settlement Agreement years ago. The latter included a provision stating:
[i]n the event of a dispute regarding any aspect of this Settlement Agreement or any of the issues underlying this Settlement Agreement, the dispute will be submitted to Judge Steven L. Bell, for final, binding and non- appealable resolution. In the event that Judge Steven L. Bell is unwilling or unable to serve in that capacity Judge Leslie Smith or an individual to be agreed upon by the parties shall be used.
Each consider it a clause mandating arbitration between them. Furthermore, the record
illustrates that they have invoked it before.
Next, “[t]he making of an agreement described by Section 171.001 [of the Civil
Practice and Remedies Code] that provides for or authorizes an arbitration in this state
and to which that section applies confers jurisdiction on the court to enforce the
1 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
2 agreement and to render judgment on an award under this chapter.” TEX. CIV. PRAC. &
REM. CODE ANN. § 171.081. As this Court observed in Cypress Drilling, LLC v. Medve
Energy Ventures, LLC, No. 07-18-00288-CV, 2019 Tex. App. LEXIS 9603 (Tex. App.—
Amarillo Oct. 31, 2019, no pet.) (mem. op.), an agreement failing to provide for arbitration
in this state may deprive Texas courts with jurisdiction to compel arbitration. Id. at *4–5.
Yet, one must remember: arbitration is a creature of contract or agreement. Belmont
Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 357 (Tex. App.—
Houston [1st Dist.] 1995, no writ). Enforceable agreements arise in different ways so long
as there is a meeting of the minds by the parties about a particular matter. See Domingo
v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.—Amarillo 2008, no pet.) (stating that while a
“‘meeting of the minds’ is not an independent element of a valid contract,” it is “a mutuality
subpart of the offer and acceptance elements” or “a mutual understanding and assent to
the expression of the parties’ agreement”). Furthermore, actions of the parties in
performing the contract may reveal not only their contractual intent, see Consol. Eng’g
Co. v. S. Steel Co., 699 S.W.2d 188, 192–93 (Tex. 1985) (stating that “[c]onduct of the
parties which indicates the construction that the parties themselves placed on the contract
may therefore be considered in determining the parties’ true intent”), but also their
agreement to alter contractual terms. See Tillison v. Bailey, No. 06-05-00071-CV, 2006
Tex. App. LEXIS 4529, at *10–11 (Tex. App.—Texarkana May 26, 2006, no pet.) (mem.
op.)(stating that “[c]ontract modification may be proved by direct testimony, or by
implication from the conduct of the parties and the particular facts and circumstances of
the case”). Indeed, being creators of their agreement, they are free to mutually assent to
its change. That change may occur to arbitration agreements, as well. Roehrs v. FSI
3 Holdings, Inc., 246 S.W.3d 796, 808 (Tex. App.—Dallas 2008, pet. denied); Fee, Smith,
Sharp & Vitullo, LLP v. Strunk, No. 05-21-00003-CV, 2021 Tex. App. LEXIS 8055, at *9
(Tex. App.—Dallas Sept. 30, 2021, pet denied) (mem. op.).
Here, the record illustrates that the Harrell group initially moved the 250th District
Court in Travis County to compel arbitration of Bell’s complaints. Bell responded in writing
but not by arguing that the court lacked jurisdiction. Quite the contrary. He averred that
the Settlement Agreement “requires arbitration” and it “should be ordered pursuant to the
following process: a. Arbitration is compelled according to the July 23, 2009 Settlement
Agreement.” The same document also contained his request for the trial court to appoint
an arbitrator if the individuals named in the arbitration clause would not serve and the
parties failed to agree to one. He followed that with his later entreaty upon the court “that
an independent arbitrator be appointed by this Court pursuant to Article 171.041 of the
Texas General Arbitration Act” and that “[t]he Arbitration should take place in Austin,
Texas.” (Emphasis added). And, when the topic of jurisdiction arose at an ensuing
hearing, Bell, through his legal counsel, expressly “acquiesced” in the trial court selecting
the arbitrator. He said to the trial court: “[W]e have signed an order giving you the
power and acquiesced and asked you to appoint the arbitrator.” (Emphasis added).
Elsewhere Bell said, through counsel, “Like I said, this is a Texas case, we’ve all
acquiesced to Texas jurisdiction, they’ve answered here.” (Emphasis added). So
too did he concede in open court that “[w]e agreed to an order compelling arbitration.”
(Emphasis added).
Indeed, the “order” to which he referred was executed on September 19, 2018,
and signed by counsel representing the litigants. Though the signatures appeared after
4 the phrase “as to form,” again, Bell told the court “[w]e agreed to an order compelling
arbitration.” Moreover, the Harrell Group did not dispute that then or now. Instead, all
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00243-CV
GORDON EUGENE BELL, APPELLANT
V.
GARY HARRELL, JAN BELL, TONY NAJAR, JILL NAJAR, KARLA DRAKE, AND BELL REALTY, APPELLEES
On Appeal from the 459th District Court Travis County, Texas Trial Court No. D-1-GN-18-004630, Honorable J. David Phillips, Presiding
June 14, 2022 OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
This appeal involves a dispute between family members and an ensuing
arbitration. Despite having sought the appointment of an arbitrator, Gordon Eugene Bell
now attacks the trial court’s subject-matter jurisdiction to compel arbitration. The identity
of the arbitrator appointed and attorney’s fees assessed by the trial court underlie his other two issues. Gary Harrell, Jan Bell, Tony Najar, Jill Najar, Karla Drake, and Bell
Realty (the Harrell Group) ask us to affirm the trial court. We accede to that request.1
Jurisdiction
We first address subject-matter jurisdiction to order arbitration. Bell contends that
the trial court lacked it. The nature of his complaint is best summarized by his own words:
In this case, the arbitration agreement was contained in a Settlement Agreement which arose from litigation in New Mexico with New Mexico parties. Further, the Settlement Agreement provided that the New Mexico court had continuing jurisdiction over the settlement agreement. In this case, there was no agreement to arbitrate in this state as required by Section 171.081 of the Texas Civil Practice and Remedies Code. As such, the Texas court did not have jurisdiction to compel arbitration. Instead, jurisdiction remained in New Mexico and the trial court’s Final Judgment confirming the arbitration award is void and should be vacated.
We overrule the issue for the following reasons.
First, Bell and the Harrell Group have a contumacious history. It resulted in
litigation and the Settlement Agreement years ago. The latter included a provision stating:
[i]n the event of a dispute regarding any aspect of this Settlement Agreement or any of the issues underlying this Settlement Agreement, the dispute will be submitted to Judge Steven L. Bell, for final, binding and non- appealable resolution. In the event that Judge Steven L. Bell is unwilling or unable to serve in that capacity Judge Leslie Smith or an individual to be agreed upon by the parties shall be used.
Each consider it a clause mandating arbitration between them. Furthermore, the record
illustrates that they have invoked it before.
Next, “[t]he making of an agreement described by Section 171.001 [of the Civil
Practice and Remedies Code] that provides for or authorizes an arbitration in this state
and to which that section applies confers jurisdiction on the court to enforce the
1 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
2 agreement and to render judgment on an award under this chapter.” TEX. CIV. PRAC. &
REM. CODE ANN. § 171.081. As this Court observed in Cypress Drilling, LLC v. Medve
Energy Ventures, LLC, No. 07-18-00288-CV, 2019 Tex. App. LEXIS 9603 (Tex. App.—
Amarillo Oct. 31, 2019, no pet.) (mem. op.), an agreement failing to provide for arbitration
in this state may deprive Texas courts with jurisdiction to compel arbitration. Id. at *4–5.
Yet, one must remember: arbitration is a creature of contract or agreement. Belmont
Constructors, Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 357 (Tex. App.—
Houston [1st Dist.] 1995, no writ). Enforceable agreements arise in different ways so long
as there is a meeting of the minds by the parties about a particular matter. See Domingo
v. Mitchell, 257 S.W.3d 34, 40 (Tex. App.—Amarillo 2008, no pet.) (stating that while a
“‘meeting of the minds’ is not an independent element of a valid contract,” it is “a mutuality
subpart of the offer and acceptance elements” or “a mutual understanding and assent to
the expression of the parties’ agreement”). Furthermore, actions of the parties in
performing the contract may reveal not only their contractual intent, see Consol. Eng’g
Co. v. S. Steel Co., 699 S.W.2d 188, 192–93 (Tex. 1985) (stating that “[c]onduct of the
parties which indicates the construction that the parties themselves placed on the contract
may therefore be considered in determining the parties’ true intent”), but also their
agreement to alter contractual terms. See Tillison v. Bailey, No. 06-05-00071-CV, 2006
Tex. App. LEXIS 4529, at *10–11 (Tex. App.—Texarkana May 26, 2006, no pet.) (mem.
op.)(stating that “[c]ontract modification may be proved by direct testimony, or by
implication from the conduct of the parties and the particular facts and circumstances of
the case”). Indeed, being creators of their agreement, they are free to mutually assent to
its change. That change may occur to arbitration agreements, as well. Roehrs v. FSI
3 Holdings, Inc., 246 S.W.3d 796, 808 (Tex. App.—Dallas 2008, pet. denied); Fee, Smith,
Sharp & Vitullo, LLP v. Strunk, No. 05-21-00003-CV, 2021 Tex. App. LEXIS 8055, at *9
(Tex. App.—Dallas Sept. 30, 2021, pet denied) (mem. op.).
Here, the record illustrates that the Harrell group initially moved the 250th District
Court in Travis County to compel arbitration of Bell’s complaints. Bell responded in writing
but not by arguing that the court lacked jurisdiction. Quite the contrary. He averred that
the Settlement Agreement “requires arbitration” and it “should be ordered pursuant to the
following process: a. Arbitration is compelled according to the July 23, 2009 Settlement
Agreement.” The same document also contained his request for the trial court to appoint
an arbitrator if the individuals named in the arbitration clause would not serve and the
parties failed to agree to one. He followed that with his later entreaty upon the court “that
an independent arbitrator be appointed by this Court pursuant to Article 171.041 of the
Texas General Arbitration Act” and that “[t]he Arbitration should take place in Austin,
Texas.” (Emphasis added). And, when the topic of jurisdiction arose at an ensuing
hearing, Bell, through his legal counsel, expressly “acquiesced” in the trial court selecting
the arbitrator. He said to the trial court: “[W]e have signed an order giving you the
power and acquiesced and asked you to appoint the arbitrator.” (Emphasis added).
Elsewhere Bell said, through counsel, “Like I said, this is a Texas case, we’ve all
acquiesced to Texas jurisdiction, they’ve answered here.” (Emphasis added). So
too did he concede in open court that “[w]e agreed to an order compelling arbitration.”
(Emphasis added).
Indeed, the “order” to which he referred was executed on September 19, 2018,
and signed by counsel representing the litigants. Though the signatures appeared after
4 the phrase “as to form,” again, Bell told the court “[w]e agreed to an order compelling
arbitration.” Moreover, the Harrell Group did not dispute that then or now. Instead, all
proceeded with the arbitration. If nothing else, their so representing and so acting evinces
more than an intent to agree to the form of the order; they reveal an intent to treat
counsels’ signatures on the order as their actual agreement to proceed in Texas. See
GXG, Inc. v. Texacal Oil & Gas, 882 S.W.2d 850, 851–52 (Tex. App.—Corpus Christi
1994, no writ) (noting the “well-established rule that an agreed order” is both a decree
and contract binding on the parties).
Simply put, these circumstances depict mutual assent or agreement by the parties
to allow arbitration in Texas per § 171.081. That assent was and is memorialized in their
written motions, oral representations captured on record, and signatures upon the
September 18th order. This outcome is especially appropriate given that any doubts
about the agreement’s scope are resolved in favor of arbitration. Wagner v. Apache
Corp., 627 S.W.3d 277, 284 (Tex. 2021).
Second, similar reasoning warrants rejection of Bell’s contention about New
Mexico courts having continuing jurisdiction. That limitation arose via agreement of the
parties. Agreements being susceptible to alteration, they altered it by mutually urging the
trial court below to act.
Appointment of Arbitrator
Bell next complains about both the arbitrator appointed by the court and the
manner in which he was appointed. We consider those topics in reverse order and, upon
doing so, overrule them.
5 Regarding the manner of appointment, Bell asserts that the clause required the
parties to agree to the selection. No doubt, the provision alluded to the arbitrator being
one “to be agreed upon by the parties” if the named individuals would not serve. Yet, as
we observed earlier, Bell expressly asked the trial court to appoint the arbitrator. Having
invited the court to do so, he cannot now complain about the court accepting his invitation.
Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (per curiam) (stating that
“a party cannot complain on appeal that the trial court took a specific action that the
complaining party requested—a doctrine commonly referred to as ‘the invited error’
doctrine”).
Regarding the particular arbitrator, Bell believes his appointment to be improper
due to the arbitrator’s alleged partiality. He broached the topic below, contending that the
individual improperly favored the Harrell Group. In response, the Harrell Group asserted
that the allegations of partiality were false and also argued that Bell waived the claim.
The latter purportedly occurred when he failed to complain of the same arbitrator
arbitrating earlier disputes between the parties. The trial court nevertheless opted to
reappoint the individual and in doing so did not specify any particular ground supporting
its decision. Thus, Bell had the appellate burden to attack the viability of each ground
Harrell Group urged below. Jetall Cos., Inc. v. JPG Waco Heritage, LLC, No. 07-20-
00126-CV, 2020 Tex. App. LEXIS 4860, at *2 (Tex. App.—Amarillo June 30, 2020, pet.
denied) (mem. op.) (stating that someone “seeking reversal has the burden to illustrate
its entitlement to same” and “if the order or judgment under attack is founded upon
multiple grounds, the appellant has the burden to establish why none of those grounds
6 support the decision”). Yet, he said nothing about waiver and, consequently, failed to
carry his burden to show error.
Attorney’s Fees
Finally, Bell argues that “the trial court erred in confirming the arbitrators award of
post-arbitration attorney’s fees because there is no authority to award the same.”
(Emphasis added). We overrule the issue.
The arbitrator awarded the Harrell Group attorney’s fees totaling $236,547.90. Of
that sum, $9,895.32 constituted fees related to pursuing discovery sanctions against Bell.
The remainder, $226,652.58, represented “attorneys’ fees and costs incurred [in]
defending this litigation.” The arbitrator further ordered that “[i]n connection with any
action or appeal in connection with efforts to confirm, enforce, or collect this Final
Arbitration Award or any Judgment entered confirming this Final Arbitration Award,
Respondents are hereby awarded their reasonable attorneys’ fees, expenses, and costs
in addition to any other relief to which they may be entitled.” The calculation of the latter
were expressly left to the trial court by the arbitrator.
Upon the Harrell Group petitioning the trial court to confirm the arbitrator’s decision,
the trial court calculated the additional fees. They included “$59,906.70 in reasonable
attorneys’ fees incurred in connection with efforts to confirm the Final Arbitration Award
in this case” and specific sums conditioned upon Bell unsuccessfully appealing the final
judgment. They were then added to the $236,547.90 in fees found by the arbitrator.
In urging his complaint on appeal, Bell does not object to all of those fees. Instead,
his argument, as proffered, concerns “post-arbitration attorney’s fees” or “attorneys’ fees
for enforcing or appealing the confirmation of the award.” This leads us to interpret the
7 complaint as omitting attack upon the $236,547.90 sum found by the arbitrator and
incorporated into the trial court’s final judgment.
Next, in support of his argument, Bell cites us to various authority generally holding
that “a trial court” may not award additional attorney’s fees for enforcing or appealing the
confirmation of the award if an arbitrator’s decision already includes an award of
attorney’s fees. See, e.g., Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 436 (Tex. App.—
Dallas 2004, pet. denied). We have no quarrel with that. Furthermore, the reason for
such a rule is explained by the authority cited in Crossmark. That authority is Cooper v.
Bushong, 10 S.W.3d 20, 26 (Tex. App.—Austin 1999, pet. denied), and International Bank
of Commerce-Brownsville v. International Energy Development Corp., 981 S.W.2d 38,
54–55 (Tex. App.—Corpus Christi 1998, pet denied). In the former, the panel observed
that (1) “[c]ourts are not free to simply change an arbitrator’s award”; (2) the “arbitrator
addressed all issues in controversy in this action”; (3) the “arbitrator here determined the
issue of attorney’s fees”; (4) the “district court is not permitted to second-guess this
decision on the merits”; and (5) “[b]ecause no grounds exist for modifying or correcting
the arbitrator’s award, we conclude that the district court was precluded from interfering
with the arbitrator’s jurisdiction and impermissibly modified the arbitrator’s decision” by
reducing the attorney’s fees award. Cooper, 10 S.W.3d at 26.
In turn, the International Bank panel said that “[j]udicial awards of additional relief
on matters already decided by the arbitrators is not consistent with the language or policy
of the FAA.” Int’l Bank of Commerce, 981 S.W.2d at 54. In so holding, it cited Schlobohm
v. Pepperidge Farm, Inc., 806 F.2d 578 (5th Cir. 1986). Schlobohm tells us that “where
the parties made an agreement intended to avoid court litigation by resolving the entire
8 dispute through arbitration, intervention by the court to award additional relief would be
inconsistent with the language and policy of the Federal Arbitration Act.” Id. at 581.
However, it further noted that “[t]he parties . . . did not agree to submit to arbitration the
entire dispute between them.” Id. “Instead . . . the only issue submitted . . . was the fair
market value of the franchise.” Id. “Under these circumstances, . . . the district court was
free to consider whether an award of attorney’s fees, interest, and costs was appropriate
and that such an award would not impermissibly modify the arbitrators’ decision.” Id. In
other words, because the arbitrator was not tasked with deciding the issue of fees, the
trial court was not precluded from doing so.
Reading each of these authorities together reveals a common logical and
jurisprudential thread. It relates to the purpose and authority of the arbitrator and the trial
court’s ability to interfere with same. Simply put, the arbitrator generally has final say on
issues submitted to it. Thus, “judicial awards of additional relief on matters already
decided by the arbitrator” is inconsistent with the policy of affording arbitrators that final
say. Courts “are not free to simply change an arbitrator’s award” because that too
interferes with the same policy. In short, an arbitrator having addressed and awarded
relief upon an issue submitted to it curtails the trial court’s authority to grant more or
inconsistent relief. And, that leads us back to Crossmark. There, the “trial court” was
barred from awarding additional attorney’s fees for enforcing or appealing confirmation of
an arbitration award. This was so because the arbitrator already arbitrated or resolved
the topic. The same is no less true here, but the manner in which the arbitrator did it
differs.
9 At bar, the arbitrator actually awarded the Harrell Group attorney’s fees incurred in
“connection with any action or appeal in connection with efforts to confirm, enforce, or
collect this Final Arbitration Award or any Judgment entered confirming this Final
Arbitration Award.” Assigning the requisite authority and finality to that decision obligates
us to conclude that the Harrell Group was, and is, entitled to the fees which Bell attacks;
they were awarded pursuant the arbitrator’s edict.2
To the extent that Bell also suggests that the Harrell Group did not pray for
recovery of the fees awarded when asking the trial court to confirm the arbitrator’s
decision, the record belies that. They asserted in their motion to confirm the award that
they “were awarded their reasonable attorneys’ fees and expenses incurred in connection
with any action or appeal in connection with efforts to confirm, enforce, or collect the Final
Arbitration Award.” Then, they prayed for “attorneys’ fees and costs associated with
obtaining and enforcing the judgment against Bell . . . including any appeals.” Obtaining
a favorable judgment necessarily encompasses confirmation of the arbitration award;
logically, without its confirmation, a favorable judgment could not be awarded. So, in
reading the quoted passages together and affording them their reasonable meaning, we
conclude that the Harrell Group prayed for the very fees awarded them.
Having overruled each of Bell’s issues, we affirm the trial court’s final judgment.
Brian Quinn Chief Justice
2 The arbitrator effectively left the actual calculation of the fees to the trial court, and Bell failed to argue that such was impermissible. Thus, whether the trial court has the authority to calculate the amount of fees pursuant to an arbitrator’s award of them is not before us.