Texas Judiciary Online - HTML Opinion

Similar to=20 its argument regarding prejudgment interest on the intervention = attorney=3Ds fees,=20 Verner Liipfert argues Sydow=3Ds request=20 for mathematical corrections was not timely because it was not = included in=20 an application for correction filed within 90 days of receipt of = the=20 original award. See Tex. Civ. Prac. & Rem. = Code=20 Ann. ' = 171.091. However, as with the award of prejudgment interest, = the=20 arbitrator made the mathematical corrections in the amended = award. =20 Because the amended arbitration award purported to vacate and = supercede=20 the original award, Sydow had no reason to apply to the trial = court to=20 make mathematical corrections to the original award.^{^[9]} =20 Sydow=3Ds=20 application to confirm the amended award, which included the = mathematical=20 corrections, placed the issue before the trial court (as did=20 Sydow=3Ds response=20 to Verner Liipfert=3Ds=20 application to confirm the original award). Consequently, = the trial=20 court had the authority to make the mathematical = corrections. =20 Accordingly, we overrule Verner Liipfert=3Ds sole=20 issue.^{^[10]}

V. =20 Conclusion

We find that the = trial court=20 erred in refusing to modify the arbitrator=3Ds original award by = adding=20 prejudgment interest on the intervention = attorney=3Ds fees in the final = award=20 calculations. Accordingly, we reform the trial = court=3Ds final judgment so = as to=20 modify the original award by adding prejudgment interest at 5% per = annum=20 to the award calculations. We affirm the final judgment as = so=20 reformed.

/s/ =20 Adele Hedges

Chief = Justice

Judgment=20 rendered and Opinion filed January 25, 2007.

Panel=20 consists of Chief Justice Hedges, Justice Seymore, and Senior = Justice=20 Mirabal.^{^[11]}

^{^[1]} The arbitrator found that Verner = Liipfert=20 promised to provide Sydow with professional liability coverage for = a=20 period after he left the firm and explained that such promise = basically=20 indemnified Sydow from liability to third persons resulting from=20 professional representation. The arbitrator further reasoned = that=20 because the grievance could not have resulted in liability to a = third=20 person, it was not covered by Verner Liipfert=3Ds promise, but because the intervention = could have=20 resulted in liability to a third person, it was covered by the=20 promise. Whether the trial court=3Ds reasoning on this matter is correct is = not at=20 issue in this appeal.

^{^[2]} Plaintiff=3Ds exhibit 8 is a statement of = disbursements in the=20 Miller case.

^{^[3]} Verner Liipfert casts = Sydow=3Ds appeal as an impermissible appeal from = the=20 denial of a motion for summary judgment, citing Ackermann v.=20 Vordenbaum, 403 S.W.2d 362, 365 (Tex. 1966). However, it = is=20 clear from the record that Sydow is appealing from the trial=20 court=3Ds grant of Verner Liipfert=3Ds request to vacate the amended award = and confirm=20 the original award, as well as from the court=3Ds denial of Sydow=3Ds request to confirm the amended award, = not just=20 from the denial of the motion for summary = judgment.

^{^[4]} Based on our resolution of the = issues=20 raised by the parties, we need not determine whether the agreement = provides additional grounds for modification by the=20 arbitrator.

^{^[5]} Sydow phrases his sole issue as = two=20 alternatives: either the trial court erred in failing to confirm = the=20 arbitrator=3Ds amended award, or the trial court = erred in=20 failing to modify the arbitrator=3Ds original award to include the changes = made by=20 the arbitrator in the amended award.

^{^[6]} Sydow specifically references the = following=20 sentence in the original award as stating an intention to award = amounts=20 for post-joinder expenses:

I believe the evidence is sufficient = that the Firm=20 assumed certain pre-existing expenses of all of the foregoing = cases=20 together with interest thereon, and that the Miller case = had a=20 range of approximately $30,000 (the amount that appears written by = Parkins=20 in his memorandum not $300,000 as Sydow testified) of pre-existing = expenses plus interest on the Miller case together with = expenses=20 incurred post September 15, 1997, expenses on that case = [sic].

This sentence seems to reference Verner=20 Liipfert=3Ds assumption of post-joinder expenses in = Miller=20 (a fact not disputed by Verner Liipfert at any point). = It does=20 not suggest that Verner Liipfert still owed any post-joinder = expenses in=20 Miller. Indeed, nowhere in the original award is = there any=20 mention that Verner Liipfert still owed Sydow for post-joinder = expenses in=20 Miller, and as discussed in the text above, the issue of = liability=20 for post-joinder expenses was apparently not before the arbitrator = for=20 determination.

^{^[7]} Verner Liipfert also cites the = doctrines of=20 functus officio and res judicata as limiting an=20 arbitrator=3Ds ability to modify an arbitration = award. =20 However, in light of the specific TAA and CPR Rules provisions = governing=20 modification of arbitration awards, these doctrines have no impact = on our=20 analysis.

^{^[8]} The situation is therefore unlike = the one=20 encountered in Hamm v. Millenium Income Fund, L.L.C., 178 = S.W.3d=20 256 (Tex. App.CHouston [1st Dist.] 2005, pet. = denied). In=20 that case, the party seeking to vacate an arbitration award did = not file=20 anything prior to confirmation of the award except a motion for=20 continuance. Id. at 259, 269. The motion stated = that=20 the party intended to request that the award be vacated but did = not offer=20 any grounds therefor. Id. at 259. The court = held that=20 the motion to vacate filed after confirmation was untimely. =20 Id. at 259 (AThe trial court had no discretion but to = confirm=20 the arbitration award if the Hamm parties did not file a motion to = vacate=20 or to modify (or otherwise challenge in any way) the award before = the=20 ruling on Millennium=3Ds motion to confirm.@). Here, the substance of = Sydow=3Ds complaint regarding the original award = was=20 clearly before the court, and was well briefed by the parties, = prior to=20 confirmation of the award.

We further note that Sydow=3Ds petition seeking confirmation of the = amended=20 award was filed within 90 days after his receipt of the original=20 award. The original award issued on October 19, 2004. = The=20 amended award issued on November 30, 2004. Sydow filed his = original=20 petition seeking confirmation on December 3, = 2004.

^{^[9]} This is not to say that making = such=20 application, as an alternative to the application to confirm the = amended=20 award, would have been improper.

^{^[10]} Verner Liipfert does not make any = arguments=20 regarding the substance of the mathematical corrections; it argues = only=20 that the court was without authority to make such corrections = because=20 Sydow=3Ds request was untimely.

^{^[11]} Senior Justice Margaret G. = Mirabal sitting=20 by = assignment.