Juan Acra, Secner USA, LLC, Secner HR S.A. DE C v. and North American Secner Holdings, LLC v. Giovanni Bonaudo and Maria Jilma Maldonado

• Court: Court of Appeals of Texas
• Decided: July 3, 2018
• Docket: 05-17-00451-CV
• Status: Published

Opinion

Affirmed in part and modify in part; Opinion Filed July 3, 2018.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00451-CV

JUAN ACRA, SECNER USA, LLC, SECNER HR S.A. DE C.V. AND NORTH AMERICAN SECNER HOLDINGS, LLC, Appellants V. GIOVANNI BONAUDO AND MARIA JILMA MALDONADO, Appellees

On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-01909

MEMORANDUM OPINION Before Justices Myers, Boatright, and O'Neill1 Opinion by Justice Myers Juan Acra, Secner USA, LLC, Secner HR S.A. De C.V., and North American Secner

Holdings, LLC appeal the trial court’s judgment confirming the arbitration award in favor of

Giovanni Bonaudo and Maria Jilma Maldonado. Appellants bring six issues on appeal contending:

(1) the trial court’s order confirming the arbitration award is subject to the same standard of review

as a judgment from a bench trial; (2) the arbitrator exceeded his powers by awarding breach-of-

contract damages to Bonaudo for his unpaid salary because the evidence did not support the award;

(3) the arbitrator exceeded his powers by awarding damages to Bonaudo on his fraud claim

concerning a Mexican judgment; (4) the arbitrator exceeded his powers by awarding damages

1 The Honorable Michael J. O'Neill, Justice, Assigned. against North American Secner Holdings, LLC because no evidence supported the award; (5) the

trial court erred by awarding appellees attorney’s fees for the post-arbitration proceedings; and (6)

the arbitrator exceeded his powers by applying adverse inferences against appellants for failing to

produce financial statements and ledgers. We conclude the arbitration proceedings in this case are

subject to the usual limited review applied to arbitration proceedings. We also conclude appellants

have not shown the arbitrator exceeded his powers. Finally, we conclude the trial court erred by

awarding appellees attorney’s fees for obtaining confirmation of the arbitration award and for

opposing appellants’ motion to vacate the arbitration award. Accordingly, we modify the trial

court’s judgment to delete the award of post-arbitration attorney’s fees, and we otherwise affirm

the trial court’s judgment.

BACKGROUND

This case concerns the business relationship of Juan Acra and Maria Jilma Maldonado with

Giovanni Bonaudo. Their companies were selling products for the Mexican petroleum industry.

The relationship did not last, and in 2012, appellees sued appellants for breach of contract,

fiduciary duty, the duty of loyalty, and the duty of care. They also sued appellants for tortious

interference with contract, unjust enrichment, and conspiracy. Appellees sought actual and

exemplary damages, attorney’s fees, declaratory judgment, an accounting, imposition of a

constructive trust, and a permanent injunction.

The suit alleged appellants concealed assets from appellees, and appellants failed to pay

Bonaudo the salary the parties agreed to while Acra was reimbursed for expenses in the amount of

the agreed salary. The suit also alleged that appellants required Bonaudo to guaranty the liabilities

of the business entities, which were over $100,000. Appellants demanded that the case be

arbitrated pursuant to an arbitration provision between business entities in which Acra and

Bonaudo had interests. The trial court abated the case for the parties to arbitrate the dispute.

–2– During the arbitration proceeding, Bonaudo asserted his claim for fraud included the facts

concerning a promissory note. Appellant Secner HR signed a promissory note for $100,000

payable to a Mexican company, and Bonaudo signed as a “joint and several guarantor.” Secner

HR did not pay the note, and the note was transferred to Hector Moreno, a former attorney for

Secner HR. Moreno obtained a judgment in Mexico against Bonaudo and Secner HR for the note

and pursued collection of the note against Bonaudo but not Secner HR. Bonaudo asserted that

Secner HR had sufficient funds to pay the note and that Secner HR defrauded him by not paying

the note.

At the conclusion of the arbitration proceeding, the arbitrator rendered its award. The

award ordered appellants to pay Bonaudo $240,000 for his salary from February 2010 to March

2012. The award also required appellants to pay Bonaudo $132,394.72, the amount of the Mexican

judgment, unless appellants obtained a release of Bonaudo from the judgment. The trial court

confirmed the arbitration award and also awarded appellees their attorney’s fees incurred for

confirming the arbitration award and defending against appellants’ motion to vacate the award.

STANDARD OF REVIEW

Arbitration of disputes is strongly favored under both federal and Texas law. Prudential

Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995) (per curiam) (orig. proceeding);

Cambridge Legacy Grp., Inc. v. Jain, 407 S.W.3d 443, 447 (Tex. App.—Dallas 2013, pet. denied).

We review a trial court’s decision to vacate or confirm an arbitration award de novo based on the

entire record. Cambridge, 407 S.W.3d at 447. We indulge all reasonable presumptions to uphold

the arbitration award, and no presumptions are indulged against it. Id. An arbitration award has

the same effect as a judgment of a court of last resort, and it is presumed valid and entitled to great

deference. Id. Review of an arbitration award is so limited that even a mistake of fact or law by

the arbitrator in the application of substantive law is not a proper ground for vacating an award.

–3– Id. at 448. A party seeking to vacate or modify an arbitration award bears the burden of proving

the necessary grounds. Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 804 (Tex. App.—Dallas

2008, pet. denied).

Under both the Federal Arbitration Act (FAA) and the Texas Arbitration Act (TAA), there

are no common-law grounds for vacating an arbitration award. Instead, under both acts, vacatur

is limited to the grounds expressly provided by statute. See 9 U.S.C. § 10(a); TEX. CIV. PRAC. &

REM. CODE ANN. § 171.088 (West 2011); Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576,

584 (2008) (“We now hold that §§ 10 and 11 respectively provide the FAA’s exclusive grounds

for expedited vacatur and modification.”); Hoskins v. Hoskins, 497 S.W.3d 490, 491, 494 (Tex.

2016) (statutory grounds for vacatur of arbitration award are exclusive; common-law ground of

manifest disregard of law is not a ground for vacatur under the Texas Arbitration Act). But see

Jefferson Cty. v. Jefferson Cty. Constables Ass’n, 546 S.W.3d 661, 665 (Tex. 2018) (“As relevant

here, the common law allows vacatur of an arbitration award if . . . the award ‘clearly violates

carefully articulated, fundamental [public] policy.’” (quoting CVN Grp., Inc. v. Delgado, 95

S.W.3d 234, 239 (Tex. 2002)). Both acts provide for vacating an arbitration award if the arbitrators

“exceeded their powers.” 9 U.S.C. § 10(a)(4) (“In any of the following cases the United States

court . . . may make an order vacating the award . . . where the arbitrators exceeded their

powers . . . .”); CIV. PRAC. § 171.088(a)(3)(A) (“On application of a party, the court shall vacate

an award if . . . the arbitrators . . . exceeded their powers . . . .”). Unless the arbitration award is

vacated, modified, or corrected on a ground provided in the arbitration acts, the trial court, on

application of a party, must enter an order confirming the award. See 9 U.S.C. § 9; CIV. PRAC. §

171.087.

–4– JUDICIAL REVIEW

In their first issue, appellants assert that we may review the confirmed arbitrator’s award

as if it were issued following a bench trial. Arbitrators ordinarily have the power to interpret the

facts and the law and to apply them with little judicial review. However, the parties, in an

agreement under the Texas Arbitration Act, may expressly agree to limit that power and to provide

for expanded judicial review of the arbitrator’s decision. Any agreement to limit the arbitrator’s

power or to expand judicial review of the arbitrator’s award must clearly do so. See Nafta Traders,

Inc. v. Quinn, 339 S.W.3d 84, 101 (Tex. 2011) (“But absent clear agreement, the default under the

TAA, and the only course permitted by the FAA, is restricted review.”).

In Nafta Traders, the parties’ arbitration provision clearly limited the arbitrator’s powers

and expanded judicial review by stating, “The arbitrator does not have authority (i) to render a

decision which contains a reversible error of state or federal law . . . .” Id. at 88. The supreme

court concluded this provision provided an express, clear limitation on the powers of the arbitrator

“to that of a judge, whose decisions are reviewable on appeal.” Hoskins, 497 S.W.3d at 494

(quoting Nafta Traders, 339 S.W.3d at 93).

Appellants argue the arbitration provision in this case contains a provision similar to that

in Nafta Traders barring the arbitrator from rendering a decision containing a reversible error of

law. The arbitration agreement in this case was part of the parties’ “Services Agreement,” which

provided that if the parties were unable to resolve disputes on their own,

then the disputes or differences shall be finally settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA Rules”), by a single arbitrator and the arbitration shall take place in the City of Houston, State of Texas. The arbitrator shall not have the authority to add to, detract from, or modify any provision hereof nor to award punitive damages to any injured party. A decision by the arbitrator shall be final and binding, and judgment may be entered on the arbitrator’s award in any court having jurisdiction. The direct expense of any arbitration proceeding shall be borne as the arbitrator may determine. The arbitrator shall have the authority to order or award any provisional remedy or other remedy or relief which may be available –5– from a court of law with respect to such unresolved dispute or controversy, including but not limited to interim orders or awards, but the arbitrator shall have no power or authority to order or grant any remedy or relief which a court could not order or grant under applicable law.

(Emphasis added.)

Appellants argue that the phrase, “the arbitrator shall have no power or authority to order

or grant any remedy or relief which a court could not order or grant under applicable law,” meant

“the arbitrator’s power and authority here are equal to the power and authority of a trial court, and

a trial court does not have the authority to grant relief supported by legally or factually insufficient

evidence, or based on erroneous conclusions of law.” Thus, according to appellants, this case is

analogous to Nafta Traders. We disagree for two reasons. First, the provision relied on by

appellants does not apply to the final arbitration award, and second, the provision does not clearly

provide that the arbitrator does not have the power to render a decision containing a reversible

error of law.

We first consider whether the phrase in the arbitration provision on which appellants rely

applies to the final arbitration award. Appellants argument takes the phrase out of the context of

the rest of the sentence in which it is found. That sentence reads:

The arbitrator shall have the authority to order or award any provisional remedy or other remedy or relief which may be available from a court of law with respect to such unresolved dispute or controversy, including but not limited to interim orders or awards, but the arbitrator shall have no power or authority to order or grant any remedy or relief which a court could not order or grant under applicable law.

This provision concerns the type of temporary relief the arbitrator could order before resolution of

the dispute or controversy, that is, provisional or interim relief or other relief “with respect to such

unresolved dispute or controversy.” (Emphasis added.) The entire sentence, in context, does not

clearly limit the types of relief the arbitrator could award after it decides the case. Appellants’

complaints concern the relief awarded in its decision resolving the issues in the case. None of

–6– appellants’ complaints concern relief awarded when the dispute was unresolved. Therefore, this

sentence does not apply to the final arbitration award or to appellants’ arguments against the award.

However, even if the phrase extended to the arbitrator’s award resolving the dispute, the

phrase does not clearly show the “parties have agreed to limit an arbitrator’s power to that of a

judge, whose decisions are reviewable on appeal.” Nafta Traders, 339 S.W.3d at 93. In Holmes

Builders at Castle Hills, Ltd. v. Gordon, No. 05-16-00887-CV, 2018 WL 1081635 (Tex. App.—

Dallas Feb. 28, 2018, no pet.) (mem. op.), we stated, “To determine whether a provision in an

arbitration agreement restricts the arbitrator’s power, we read the arbitration agreement without

the provision. If the omission of the provision leaves the arbitrator with more power than he would

have with the provision included, then the provision restricts the arbitrator’s power.” Id. at *3. In

this case, if the arbitration provision did not state that the arbitrator “shall have no power or

authority to order or grant any remedy or relief which a court could not order or grant under

applicable law,” then the arbitrator would have had the power to grant a remedy or relief that a

court could not grant. See TEX. CIV. PRAC. & REM. CODE ANN. § 171.090 (West 2011) (“The fact

that the relief granted by the arbitrators could not or would not be granted by a court of law or

equity is not a ground for vacating or refusing to confirm the award.”). Therefore, the arbitration

provision in this case does limit the arbitrator’s power. However, we disagree with appellants that

the provision means that the arbitrator could not render a decision containing a reversible error

under the law. Instead, the arbitration provision limited the types of relief the arbitrator could

award to those that a trial court could order. Thus, all the provision does is make section 171.090

inapplicable. Unlike the provision in Nafta Traders, the arbitration provision does not clearly limit

the power of the arbitrator “to that of a judge, whose decisions are reviewable on appeal.” Hoskins,

497 S.W.3d at 494 (quoting Nafta Traders, 339 S.W.3d at 93); see Prell v. Bowman, No. 05-17-

00369-CV, 2018 WL 2473850, at *3–4 (Tex. App.—Dallas June 4, 2018, no pet. h.) (mem. op.)

–7– (listing arbitration provisions where parties had asserted unsuccessfully that arbitrators lacked

power to make a decision containing a reversible error under state or federal law). Unlike the

arbitration provision in Nafta Traders, the arbitration provision in this case does not clearly state

that the arbitrator had no power to render a decision containing a reversible error of law. Therefore,

we conclude the provision does not limit the arbitrator’s power to render a decision based on

insufficient evidence or erroneous conclusions of law. Nor does the arbitration provision clearly

expand the judicial review permitted for the arbitration award. “[A]bsent clear agreement, the

default under the TAA, and the only course permitted by the FAA, is restricted review.” Nafta

Traders, 339 S.W.3d at 101.

We conclude the arbitration agreement in this case does not permit us to review the

confirmed arbitration award as if it were issued following a bench trial. We overrule appellants’

first issue.

EXCEEDING POWERS

In their second, third, fourth, and sixth issues, appellants contend the arbitrator exceeded

his powers. “In determining whether an arbitrator has exceeded his authority, the proper inquiry

is not whether the arbitrator decided an issue correctly, but rather, whether he had the authority to

decide the issue at all.” Forest Oil Corp. v. El Rucio Land & Cattle Co., 518 S.W.3d 422, 431

(Tex. 2017). Thus, “a complaint that the arbitrator decided the issue incorrectly or made a mistake

of law is not a complaint that the arbitrator exceeded his powers.” Centex/Vestal v. Friendship W.

Baptist Church, 314 S.W.3d 677, 686 (Tex. App.—Dallas 2010, pet. denied). In other words, “a

mistake of fact or law by the arbitrator in the application of substantive law is not a proper ground

for vacating an award.” Id. at 683. “Arbitration awards are entitled to great deference by the

courts ‘lest disappointed litigants seek to overturn every unfavorable arbitration award in court.’”

Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 429 (Tex. App.—Dallas 2004, pet. denied) (quoting

–8– Daniewicz v. Thermo Instrument Sys., Inc., 992 S.W.2d 713, 716 (Tex. App.—Austin 1999, pet.

denied)).

In their second issue, appellants contend the arbitrator exceeded his powers by awarding

Bonaudo $271,094 for the salary the arbitrator determined Bonaudo should have been paid.

Appellants argue the award was based on an unenforceable oral agreement and was contrary to

two written agreements. They also argue that Bonaudo “failed to prove any lost earnings net of

tax.” See CIV. PRAC. § 18.091(a) (West 2015) (“Notwithstanding any other law, if any claimant

seeks recovery for loss of earnings, . . . evidence to prove the loss must be presented in the form

of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal

income tax law.”).

In their third issue, appellants contend the arbitrator exceeded his powers by awarding

Bonaudo $132,394.72 in damages to compensate Bonaudo for the Mexican judgment on the

promissory note. Appellants argue the arbitrator exceeded his powers because the award “amounts

to a new cause of action, is not justiciable and is unsupported by legally and factually sufficient

evidence.” Appellants argue they cannot be liable for fraud because a third party enforced the

guaranty Bonaudo executed that was the basis for the Mexican judgment. Appellants argument is

that the facts and the substantive law required the arbitrator to rule differently.

In their fourth issue, appellants argue the arbitrator exceeded his powers because the award

against North American Secner Holdings is unsupported by the evidence.

In their sixth issue, appellants contend the arbitrator “exceeded his power by applying

adverse inferences against Acra and Secner HR for failing to produce financial statements and

ledgers. Appellants argue that Acra did not have any financial statements or ledgers and that

Mexican law prohibited Secner HR from producing them.

–9– These are arguments that the arbitrator failed to decide the case correctly or to apply the

law properly. Appellants do not argue that the arbitrator lacked authority to decide these issues.

Therefore, none of these arguments establish that the arbitrator exceeded his powers.

Appellants’ third issue includes an argument that the arbitrator lacked authority to

determine appellees’ fraud claim concerning the Mexican judgment because that claim was not

properly before the arbitrator. Appellants assert that appellees’ fraud claim, as pleaded in the trial

court, did not include a claim concerning the Mexican judgment. Appellees assert it was pleaded

in the third amended petition. The fraud claim was not tried in the trial court––it was tried in the

arbitration proceeding. Appellants have not cited authority for the proposition that an arbitrator

cannot resolve a dispute that is not included in the parties’ pleadings in the trial court. Appellants

assert that the rules of the arbitration body, the AAA’s Commercial Arbitration Rules, do not

permit a party to raise a new or different claim unless the claim is made in writing and filed with

the AAA and a copy provided to the other party. This argument lacks merit for three reasons.

First, the AAA Commercial Rules are not in the record; therefore, the record contains no evidence

of what the AAA rules provide. See PER Group, L.P. v. Dava Oncology, L.P., 294 S.W.3d 378,

386 (Tex. App.—Dallas 2009, no pet.) (because AAA rule that arbitrator was to determine scope

of arbitration agreement was not in evidence, trial court was required to determine scope of

agreement). Second, appellants have not cited to any AAA filings by appellees concerning their

claims; therefore, appellants have not shown appellees did not timely raise the claim before the

arbitrator. See TEX. R. APP. P. 38.1(i) (argument must contain appropriate citations to the record).

And third, even if we could consider the AAA rules, numerous cases point out that Rule 7-A of

the AAA’s commercial arbitration rules provides that the arbitrator has the power to rule on the

arbitrability of any claim or counterclaim. See, e.g., Jody James Farms, JV v. Altman Group, Inc.,

No. 17–0062, 2018 WL 2168306, at *3 (Tex. May 11, 2018). If the arbitrator had the power to

–10– determine the arbitrability of the claims, then he had the power to determine whether the fraud

claim about the Mexican judgment was arbitrable, and that determination is subject to the limited

review of the arbitrator’s other rulings. That determination cannot be vacated except on the

statutory grounds. Therefore, appellants have not shown the arbitrator exceeded his powers by

considering the fraud claim.

Appellants also argue, “And the Arbitrator had no power or authority to wade into a

non-justiciable Mexican court’s final judgment, which the 95th District Court, Dallas County had

independently confirmed. See App. Tab 6.” This argument provides no explanation and cites no

authority for why the arbitrator lacked the power to determine whether appellants acted

fraudulently concerning the Mexican judgment. Moreover, the citation to Tab 6 of the appendix

to appellants’ brief is not helpful. Tab 6 includes documents purportedly from the suit to

domesticate the Mexican judgment. A cite to a brief’s appendix is not a cite to the record as

required by Rule of Appellate Procedure 38.1(i), and appellants have not provided any citation to

the record for these documents. See Willms v. Wilson, No. 05-08-01718-CV, 2009 WL 4283109,

at *1 (Tex. App.—Dallas Dec. 2, 2009, no pet.) (mem. op.) (“An appendix is not a substitute for a

clerk's record nor are citations to the appendix a substitute for citations to the record.”) Also, the

documents in Tab 6 do not appear to be part of the appellate record. Therefore, we cannot consider

them. See Bertrand v. Bertrand, 449 S.W.3d 856, 863 n.8 (Tex. App.—Dallas 2014, no pet.) (“We

cannot consider documents cited in a brief and attached as an appendix if they are not formally

included in the record on appeal.”). We conclude appellants have not shown the arbitrator

exceeded his powers.

We overrule appellants second, third, fourth, and sixth issues.

–11– POST-ARBITRATION ATTORNEY’S FEES

In their fifth issue, appellants contend the trial court erred by awarding appellees their

attorney’s fees for defending against appellants’ challenge to the confirmation of the arbitration

award. The trial court stated in the final judgment, “The Court finds that Respondents . . . filed a

Motion to Vacate the Arbitration Award without justification or merit. Accordingly, Plaintiffs are

awarded their reasonable attorneys’ fees of $16,027.50 . . . for responding to and obtaining the

denial of the Motion to Vacate and obtaining confirmation of the Arbitration Award . . . .” The

judgment also awards appellees $13,125 in additional attorney’s fee if appellants unsuccessfully

appeal the denial of the motion to vacate.

“If an arbitration award includes an award of attorney’s fees, a trial court may not award

additional attorney fees for enforcing or appealing the confirmation of the award, unless the

arbitration agreement provides otherwise.” Jones v. Carlos & Parnell, M.D., P.A., No. 05-17-

00329-CV, 2017 WL 4930896, at *7 (Tex. App.—Dallas Oct. 31, 2017, pet. denied) (mem. op.);

Crossmark, 124 S.W.3d at 436. The arbitration award included an award to Bonaudo of $100,650

“for reasonable and necessary attorneys’ fees and expenses.” The parties’ agreements did not

provide for attorney’s fees for enforcing the confirmation of the arbitration award. Therefore, this

Court’s prior opinions in Jones and Crossmark prohibit an award of post-arbitration attorney’s

fees.

Appellees argue that the trial court may award attorney’s fees when a party’s challenge to

an arbitration award is “without merit,” and the party’s refusal to abide by the award is “without

justification.” In support of their argument, appellees cite Stage Stores, Inc. v. Gunnerson, 477

S.W.3d 848 (Tex. App.—Houston [1st Dist.] 2015, no pet.), in which the court stated, “When a

party’s challenge to an arbitration award is ‘without merit’ and its refusal to abide by the award is

‘without justification,’ a trial court can award attorneys’ fees to the party seeking to confirm the

–12– arbitration award.” Id. at 863–64. The court of appeals’ authority for this statement was a case

from the Fifth Circuit Court of Appeals, Executone Information Systems, Inc. v. Davis, 26 F.3d

1314, 1331 (5th Cir. 1994), which relied on an earlier opinion from the Fifth Circuit, International

Ass’n of Machinists & Aerospace Workers, District 776 v. Texas Steel Co., 639 F.2d 279, 283–84

(5th Cir. Unit A Mar. 1981). Appellees also argue that an award of attorney’s fees for defending

against a meritless motion to vacate an arbitration award is supported by the public policy favoring

expedient, efficient, and cost-effective arbitration.

Regardless of how the federal courts may award attorney’s fees or the strength of the

public-policy arguments, Texas law does not allow recovery of attorney’s fees unless authorized

by statute or contract. Wells Fargo Bank, N.A., 458 S.W.3d 912, 915 (Tex. 2015); Tony Gullo

Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex. 2006). None of the agreements between the

parties or their affiliates provide for an award of attorney’s fees for proceedings to confirm an

arbitration award or for opposing a motion to vacate an arbitration award. Nor does any applicable

statute provide for attorney’s fees in this situation.2 Section 171.092 permits the trial court, in an

order that confirms, modifies, or corrects an arbitration award, to award “costs of the application

and of the proceedings subsequent to the application.” CIV. PRAC. § 171.092(b). But that statute

does not authorize the trial court to award attorney’s fees.

We conclude the trial court erred by awarding appellees attorney’s fees beyond those

awarded by the arbitrator. We sustain appellant’s fifth issue.

2 The trial court’s award of attorney’s fees was not based on Rule of Civil Procedure 13. See TEX. R. CIV. P. 13 (permitting imposition of sanctions for pleading, motion, or other paper filed in violation of requirement that documents are not groundless and brought in bad faith or for purposes of harassment). Appellants point out that an award of attorney’s fees under Rule 13 would have been improper in this case because there was no evidentiary hearing to support the imposition of a sanction under Rule 13. See Bedding Component Manufactors, Ltd. v. Royal Sleep Prods., Inc., 108 S.W.3d 563, 564 (Tex. App.—Dallas 2003, no pet.) (“Without a hearing on a motion for sanctions, the trial court has no evidence before it to determine that a pleading is sanctionable.”). We make no decision in this case of what circumstances would support the imposition of sanctions under Rule 13 for a motion opposing confirmation of an arbitration award.

–13– CONCLUSION

We modify the judgment to delete the award to appellees of $16,027.50 for attorney’s fees

“for responding to and obtaining the denial of the Motion to Vacate and obtaining confirmation of

the Arbitration Award” and the award of $13,125 for attorney’s fees “[i]n the event of an

unsuccessful appeal of the denial of the Motion to Vacate to the Court of Appeals.” In all other

respects, we affirm the trial court’s judgment.

/Lana Myers/ LANA MYERS JUSTICE

170451F.P05

–14– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUAN ACRA, SECNER USA, LLC, On Appeal from the 192nd Judicial District SECNER HR S.A. DE C.V. AND NORTH Court, Dallas County, Texas AMERICAN SECNER HOLDINGS, LLC, Trial Court Cause No. DC-12-01909. Appellants Opinion delivered by Justice Myers. Justices Boatright and O'Neill participating. No. 05-17-00451-CV V.

GIOVANNI BONAUDO AND MARIA JILMA MALDONADO, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The provision in the Amended Order Confirming Arbitration Award and Final Judgment,

It is further ORDERED, ADJUDGED AND DECREED that: The Court finds that Respondents Juan Acra, a/k/a Juan Carlos Acra-Lopez, and Secner USA, LLC filed a Motion to Vacate the Arbitration Award without justification or merit. Accordingly, Plaintiffs are awarded their reasonable and necessary attorneys' fees of $16,027.50 (representing $12,527.50 in fees incurred to Dykema Cox Smith and $3,500 in fees incurred to the Law Offices of Christopher L. Davis) for responding to and obtaining the denial of the Motion to Vacate and obtaining confirmation of the Arbitration Award, with Respondents Juan Acra, a/k/a Juan Carlos Acra-Lopez, and Secner USA, LLC jointly and severally liable for that amount.

In the event of an unsuccessful appeal of the denial of the Motion to Vacate to the Court of Appeals, Plaintiffs are entitled to an additional $13,125 in fees, with Respondents Juan Acra, a/k/a Juan Carlos Acra-Lopez, and Secner USA, LLC jointly and severally liable for that amount.

is DELETED.

–15– It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 3rd day of July, 2018.

–16–