Lindley v. FIA Card Services, N.A. f/k/a MBNA America Bank, N.A. (Tex.App.- Houston [1st
Dist.] Feb. 18, 2010)(Higley) (restricted appeal, amount of judgment confirming arbitration award varied
from arbitration award, no evidence supporting modification of amount)(
motion to reinstate after DWOP vs.
Justice Higley     
Before Chief Justice Radack, Justices Alcala and Higley    
01-09-00323-CV John R. Lindley v. FIA Card Service, N. A. fka MBNA America Bank, N. A.    
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Hon. Linda Storey   


    This is a restricted appeal in a suit to confirm an arbitration award. Appellant, John R. Lindley, appeals
from a default judgment granted in favor of appellee, FIA Card Services N.A., f/k/a MBNA Bank America, N.
A. (“FIA”) on a credit card debt.

    In three issues, Lindley contends that (1) FIA’s suit was improperly reinstated; (2) FIA failed to serve
him with notice of trial settings; and (3) the default judgment is “defective.” Lindley requests a new trial, and
FIA “agrees to a new trial.”

    We reverse and remand.


    On January 23, 2007, after arbitration proceedings on a credit-card debt, creditor FIA was awarded
$16,010.84 against debtor Lindley. On April 19, 2007, FIA sued in the trial court to confirm the award. To
its petition, FIA appended a copy of the arbitrator’s findings, conclusions, and award to FIA of $16,010.84.
Lindley does not dispute that notice was properly served and that he did not answer the suit to confirm the

    In August 2007, FIA sought a default judgment, which the trial court denied. Trial was set for March 4,

    On the eve of trial, March 3, 2008, FIA moved to non-suit its claim without prejudice, which the trial court
granted. A month later, on April 3, 2008, FIA filed a verified motion to reinstate its suit, which the trial court

    On September 22, 2008, FIA again moved for a default judgment, asserting that it had filed its petition
on April 19, 2007, that it had served Lindley with citation on June 22, 2007, and that Lindley had failed to
answer. On October 17, 2008, the trial court granted the default judgment. The court ordered that FIA
recover $7,279.17 from Lindley, as the balance due on the account. On April 14, 2009, Lindley filed a
notice of restricted appeal.

Restricted Appeal

     A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six
months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate
in the hearing that resulted in the judgment complained of and did not timely file any post-judgment
motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the
record. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); see Tex. R. App. P. 26.1
(c), 30.

    Here, it is undisputed that Lindley filed notice of his restricted appeal within six months after the
judgment was signed, that he was a party to the underlying lawsuit, that he did not participate in the
hearing that resulted in the default judgment, which is the judgment complained of, and that he did not
timely file any post-judgment motions or requests for findings of fact and conclusions of law. The only issue
remaining is whether error appears on the face of the record.

    The face of the record consists of all the papers on file in the appeal. See Norman Comm. v. Tex.
Eastman Kodak, 955 S.W.2d 269, 270 (Tex. 1997) (stating that review by restricted appeal affords
appellant same scope of review as ordinary appeal, which is review of entire case). “It necessarily follows
that review of the entire case includes review of legal and factual insufficiency claims.” Id. (remanding for
review of appellant’s legal sufficiency point); see Herbert v. Greater Gulf Coast Enter., 915 S.W.2d 866,
870 (Tex. App.—Houston [1st Dist.] 1995, no writ).

A.      Motion to Reinstate

    In his first issue, Lindley contends that the trial court erred by reinstating FIA’s suit because FIA failed to
comply with Rule of Civil Procedure 165a.

    Rule 165a governs reinstatement after dismissal for want of prosecution. See Tex. R. Civ. P. 165a(3).
The record before us, however, does not reflect that FIA’s suit was dismissed for want of prosecution. The
record reflects that FIA took a non-suit, which is not governed by Rule 165a. Lindley’s issue cannot be
sustained on the grounds he advances.

    Accordingly, we overrule Lindley’s first issue.

B.      Default Judgment

    In his third issue, Lindley contends that error is apparent on the face of the record because FIA failed to
present any evidence to support the trial court’s modification of the arbitration award. Specifically, Lindley
contends that the record shows that FIA sought to confirm the arbitration award it attached to the petition,
which states that FIA was awarded $16,010.04. In its judgment, however, the trial court awarded $7,279.17
to FIA. Lindley contends that there is no record of any hearing on unliquidated damages and that “there is
no evidence” in the record supporting the trial court’s award. Lindley contends that “[t]he default judgment
in this matter should be reversed” and that he should be “provided his day in Court.”

    Lindley may challenge the legal sufficiency of the evidence to support the trial court’s judgment in a
restricted appeal. See Norman Comm., 955 S.W.2d at 270. Lindley does not challenge the entry of a
default Footnote ; rather, he solely challenges the amount of the trial court’s award. FIA states in its
response that it “agrees to a new trial on this issue.”

    We sustain a legal sufficiency point (1) when there is a complete absence of a vital fact; (2) when rules
of law or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) when
the evidence offered to prove a vital fact is no more than a scintilla; or (4) when the evidence conclusively
establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); El-
Khoury v. Kheir, 241 S.W.3d 82, 86 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). “The final test for
legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827.

    The face of the record in a restricted appeal consists of the documents and evidence before the trial
court when it rendered its judgment. See Norman Comm., 955 S.W.2d at 270. Here, the arbitration award
states that the matter in this case involves interstate commerce and is governed by the Federal Arbitration
Act (“FAA”). The FAA requires a trial court to confirm an arbitration award unless grounds are offered to
vacate, modify, or correct the award. 9 U.S.C §§ 10,11; see Ancor Holdings, L.L.C. v. Peterson, Goldman &
Villani, Inc., 294 S.W.3d 818, 826–27 (Tex. App.—Dallas 2009, no pet.) (citing Hall St. Assocs., L.L.C. v.
Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403 (2008) (holding that statutory grounds for modifying or
correcting arbitration award are exclusive grounds for modification of award pursuant to FAA)); see also
Tex. Civ. Prac. & Rem. Code Ann. 171.091 (Vernon 2005). Here, the record shows that the arbitrator
awarded to FIA $16,010.04. The trial court issued a judgment awarding $7,279.17 to FIA. There is no
testimony or evidence in the record before us regarding the trial court’s modification.

    We hold that the evidence is legally insufficient to support the trial court’s modification of the arbitration

    Accordingly, we sustain Lindley’s third issue.

Conclusion Footnote

    We conclude that Lindley has met the requirements for review by restricted appeal of the trial court’s
judgment awarding $7,279.17 to FIA. We reverse the trial court’s judgment and remand for further
proceedings. Footnote All pending motions relating to this appeal are denied as moot.

Laura Carter Higley


Panel consists of Chief Justice Radack and Justices Alcala and Higley.

We do not reach Lindley’s second issue, which, if sustained, would not result in greater relief. See Tex. R. App. P. 47.1. We
note that FIA states in its response to the second issue that it agrees to a new trial.

Ordinarily, when a no evidence, or legal sufficiency, challenge is sustained, judgment is rendered for the appellant. See Tex.
R. App. P. 43.3. However, a court generally cannot grant greater relief than is requested by a party. See Horrocks v. Texas
Dept. of Transp., 852 S.W.2d 498, 499 (Tex.1993); see also Jay Petroleum, L.L.C. v. EOGRes., Inc., No. 01-08-00541-CV,
2009 WL 1270251, at *3–4 (Tex. App.—Houston[1st Dist.] May 7, 2009, pet. denied). Here, examining his prayer, Lindley has
requested only a remand for new trial. Hence, we reverse the judgment of the trial court and remand the case for further
proceedings. Again, FIA states in its brief that it agrees to a new trial.