Heilmann v. Heilmann

Craig Erich HEILMANN, Appellant v. DeEnna Rae HEILMANN, Appellee

No. 04-18-00849-CV

Fourth Court of Appeals San Antonio, Texas

August 5, 2020

MEMORANDUM OPINION

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2000-CI-02542

Honorable Laura Salinas, Judge Presiding¹

Opinion by: Irene Rios, Justice

Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

AFFIRMED

This appeal arises out of a post-divorce proceeding between appellant Craig Heilmann ("Heilmann") and appellee DeEnna Jensen Heilmann ("Jensen"). In six issues, Heilmann challenges the trial court's order confirming arbitration awards and the trial court's order for turnover relief. We affirm.

THE ARBITRATION AWARDS

Background

Heilmann and Jensen divorced in June 2000. Following several years of litigation, Heilmann and Jensen executed an arbitration agreement² and participated in arbitration, which took place on February 27, 2018, and February 28, 2018. The arbitrator issued six arbitration awards. The first five arbitration awards issued on May 8, 2018, June 20, 2018, July 13, 2018, July 23, 2018, and August 8, 2018, respectively. Following each of the first five arbitration awards, the parties submitted clarification issues to the arbitrator, who addressed each clarification request in the subsequent award.

On August 22, 2018, Jensen filed a motion to approve the arbitrator's awards. Later the same day, the arbitrator issued the sixth and final arbitration award, and Jensen filed a supplemental exhibit to support her motion to approve the arbitration awards which included the arbitrator's Partial Arbitration Award No. 6. A hearing was set for six days later.

On August 28, 2018, the trial court held a hearing on Jensen's motion to approve the arbitrator's awards. During the hearing, Heilmann's counsel announced "not ready" and orally requested a thirty-day continuance. The trial court denied counsel's request and stated, "I'm going to go ahead and confirm." Heilmann's counsel then requested a recess to file a motion to vacate the arbitration awards. The trial court responded that it could not consider a motion that was not before it and denied counsel's request. Following the hearing, but on the same day—August 28, 2018—Heilmann filed a motion to vacate the arbitration award. On August 30, 2018, the trial court signed the final order approving and confirming the six arbitration awards.

On September 28, 2018, Heilmann filed a motion to modify judgment, or in the alternative, to correct arbitration awards. On October 9, 2018, Heilmann filed a supplemental motion. On October 10, 2018, the trial court denied Heilmann's motion.

In issues one and two, Heilmann contends the trial court erred by confirming the arbitration award and denying his motion to modify the final judgment or to correct the arbitration awards. Heilmann argues the amounts awarded for both child support and non-child support contain errors relating to the interest rates applied and the calculation of interest. Heilmann also argues the order contains the incorrect date upon which post-judgment interest should begin to accrue.

Standard of Review

We review a trial court's decision to confirm or vacate an arbitration award under a de novo standard. GJR Mgmt. Holdings, L.P. v. Jack Raus, Ltd., 126 S.W.3d 257, 262-63 (Tex. App.—San Antonio 2003, pet. denied). We afford great deference to the trial court's decision to confirm an arbitration award and indulge every reasonable presumption in favor of the trial court's decision. CVN Grp., Inc. v. Delgado, 95 S.W.3d 234, 245 (Tex. 2002). Judicial review of an arbitration award is extraordinarily narrow. E. Tex. Salt Water Disposal Co. v. Werline, 307 S.W.3d 267, 271 (Tex. 2010). Although we review de novo a trial court's judgment confirming an arbitration award, we give "strong deference to the arbitrator with respect to issues properly left to the arbitrator's resolution." Am. Realty Trust Inc. v. JDN Real Estate-McKinney LP, 74 S.W.3d 527, 531 (Tex. App.—Dallas 2002, pet. denied).

Applicable Law

The Texas Arbitration Act ("TAA") provides, "[o]n application of a party, the court shall vacate an award" when certain specified conditions are met. TEX. CIV. PRAC. & REM. CODE ANN. § 171.088(a). A party seeking to vacate an arbitration award must present any grounds for doing so to the trial court, otherwise, those complaints are waived on appeal. See TEX. R. APP. P. 33.1;Ewing v. Act Catastrophe-Tex. L.C., 375 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). "[A]pplications to confirm or vacate an arbitration award should be decided as other motions in civil cases; on notice and an evidentiary hearing if necessary." Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 430 (Tex. App.—Dallas 2004, no pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 171.093.

Further, "[a] motion to vacate, to modify, or to correct an arbitration award must be raised or considered before or simultaneously with a motion to confirm the award." Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 269 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Otherwise, the complaint is waived. Black v. Shor, 443 S.W.3d 154, 163-64 (Tex. App.—Corpus Christi 2013, pet. denied); see also GJR Mgmt. Holdings, L.P., 126 S.W.3d at 260 (finding a motion filed after the trial court had already confirmed the award was untimely). Thus, a party must assert a motion to vacate, modify, or correct an arbitration award by the time the court considers a motion to confirm the award. Hamm, 178 S.W.3d at 266. A party that moves to vacate, modify, or correct an arbitration award after the award has been confirmed has waived that challenge. Id. at 268.

Discussion

Texas law favors arbitration. Werline, 307 S.W.3d at 271. "[A] trial court may set aside an arbitration award only in limited circumstances." CVN Grp., Inc., 95 S.W.3d at 245. "Absent specific common-law or statutory grounds for vacating, modifying, or correcting an award, the reviewing court must confirm it." Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 171.087.

During the August 28, 2018 hearing, Heilmann's counsel informed the trial court that she had not had time to file a motion to vacate. Counsel initially requested a continuance, and then a recess, to file a motion to vacate. The trial court noted, however, that a motion to vacate could not be considered at that time because the motion to vacate was not already before the court. AlthoughHeilmann filed his motion to vacate the same day as the hearing but did so after the hearing concluded, the motion was not before the trial court so that it could be considered simultaneously with the motion to confirm.

Although Heilmann filed a motion to vacate the same day as the hearing, the record indicates Heilmann did not set his motion for a hearing. See In re Amaro, No. 13-17-00185-CV, 2017 WL 2979903, at *5 (Tex. App.—Corpus Christi July 11, 2017, orig. proceeding) (mem. op.) (noting "'movant has the burden to set a hearing on [a] motion or make a direct request to a trial judge for a hearing'") (quoting Enriquez v. Livingston, 400 S.W.3d 610, 619-20 (Tex. App.—Austin 2013, pet. denied)); see also Doss v. Robinson, No. 04-16-00560-CV, 2017 WL 2124488, at *3 (Tex. App.—San Antonio May 17, 2017, no pet.) (mem. op.) (noting the burden is on the party to set a motion for a hearing). Until a party requests a setting, a motion is not "pending before the court for its consideration." Hamm, 178 S.W.3d at 262.

Additionally, Heilmann filed his motion to modify and supplemental motion to modify on September 28, 2018, and October 9, 2018, respectively, which was well after the August 30, 2018 final order confirming of the arbitration award. Because Heilmann's motions to vacate or modify the arbitration awards were not raised or considered before or simultaneously with Jensen's motion to confirm the arbitration awards, Heilmann waived these complaints, and "absent specific common-law or statutory grounds for vacating, modifying, or correcting an award, the reviewing court must confirm it." See id. at 268; TEX. CIV. PRAC. & REM. CODE ANN. § 171.087.

Issues one and two are overruled.

THE TURNOVER ORDER

Background

On September 7, 2018, Jensen filed an application for turnover relief. On the same day, the trial court signed an order for turnover relief. On October 8, 2018, Heilmann filed a motion tovacate, or in the alternative, modify the order for turnover relief. On October 18, 2018, Jensen filed a supplemental application for turnover relief. On October 19, 2018, the trial court held a hearing and, thereafter, signed an amended order for turnover relief.

Standard of Review and Applicable Law

We review a turnover order for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Stanley v. Reef Secs., Inc., 314 S.W.3d 659, 665 (Tex. App.—Dallas 2010, no pet.). Lack of evidence to support a turnover order is a relevant consideration in determining whether the trial court abused its discretion in entering the order. Buller, 806 S.W.2d at 226; Tanner v. McCarthy, 274 S.W.3d 311, 321-22 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Although section 31.002 does not specify the manner in which evidence may be received or require evidence to be in any particular form, at any particular level of specificity, or reach any particular quantum, a trial court must have some evidence before it establishing the necessary conditions for section 31.002 to apply. Tanner, 274 S.W.3d at 322; Clayton v. Wisener, 169 S.W.3d 682, 683-84 (Tex. App.—Tyler 2005, no pet.) (concluding the trial court abused its discretion in rendering a turnover order based only on the motion and argument of the judgment creditor's counsel and without any evidence the judgment debtor possessed nonexempt property).

A trial court's issuance of a turnover order is governed by Texas Civil Practice and Remedies Code section 31.002. See TEX. CIV. PRAC. & REM. CODE ANN. §...