Saturday, October 27, 2007

Tan v. Lee (Tex.App.- Houston, 2007)

Fourteenth Court of Appeals affirms arbitration award, overrules due process challenge predicated on defective notice of hearing. Ying Chun Tan v. Hung Pin Lee, No. 14-06-00319-CV (Tex.App. - Houston [14th Dist.] Feb. 27, 2007)(Opinion by Chief Justice Hedges)(suit to confirm arbitration award) Full style of case: Ying Chun Tan v. Hung Pin Lee Appeal from 55th District Court of Harris County (Hon. Jeff Brown, District Judge) Disposition: Trial court's confirmation of arbitration award affirmed MEMORANDUM OPINION BY CHIEF JUSTICE HEDGES Ying Chun Tan appeals from the trial court's final judgment confirming an arbitration award favoring Hung Pin Lee. In her sole issue, Tan contends that the trial court erred in confirming the award because she did not receive notice of the arbitration hearing. We affirm. Background Lee brought his arbitration action against Tan and several other defendants asserting securities fraud and related claims. He filed the action with the National Association of Securities Dealers, Inc. (NASD) by filing a Statement of Claim on July 11, 2001. All parties, including Tan, signed a Uniform Submission Agreement, which stipulated that the arbitration was to be conducted under the NASD Code of Arbitration Procedure. Tan subsequently filed a Statement of Answer on September 5, 2001. Three pre-hearing conferences were held before either the whole panel or the chairperson.[1] Tan averred that these were telephone conferences and acknowledged participating in them.[2] She stated that during the final pre-hearing conference, she was told that the arbitrators would be in touch with her to let her know when the arbitration hearing would take place. The record contains two letters, dated April 17, 2003, and August 28, 2003, from a NASD staff attorney to Tan stating that the arbitration hearing would commence on September 30, 2003, and that additional sessions may occur on October 1 and 2, 2003. Also in the record is a separate letter from a different NASD staff attorney, stating that a hearing notification letter was mailed to Tan on August 28, 2003, and that the letter was not returned as undelivered. The arbitration award states that hearing sessions occurred on September 30 and October 1, 2003. The arbitrators found that although Tan was properly served with the Statement of Claim and with due notice of the hearing, she failed to appear at the hearing and, pursuant to the NASD Code of Arbitration Procedure, the hearing proceeded without her. The arbitrators determined that Tan and one other defendant were liable to Lee and ordered them, jointly and severally, to pay him $100,265.68 in compensatory damages and $22,925 in attorney's fees, witness'fees, and costs. Lee subsequently filed his application for confirmation of the award with the district court. Tan answered, alleging, among other things, that the lack of notice of the arbitration hearing: (1) violated NASD rules, (2) violated her right to due process under the United States and Texas constitutions, and (3) runs counter to the concept of notice embodied in the Texas Rules of Civil Procedure.[3] Tan then filed a Motion for Summary Judgment, raising the same notice arguments as raised in her answer. The only evidence attached to Tan's motion was an excerpt from the NASD Code regarding notice and Lee's responses to the requests for admissions, wherein Lee admitted that he did not give notice to Tan of the arbitration hearing.[4] Lee meanwhile filed a Motion to Confirm Arbitration Award. In its final judgment, the trial court denied Tan's Motion for Summary Judgment and granted Lee's Motion to Confirm the Arbitration Award. The trial court awarded damages to Lee precisely as the arbitration award had: $100,265.68 in compensatory damages and $22,925 in attorney's fees, witness' fees, and costs. In her Motion for New Trial, Tan repeated her summary judgment arguments, and she again attached the NASD Code excerpt and Lee's responses to the requests for admissions. She additionally attached her own affidavit, stating that she never received notice of the arbitration hearing date from either NASD or Lee's attorney. She said that she "would not have defaulted on the arbitration hearing if she had known about it." At a hearing on the motion, Tan further testified that she moved five or six months before the hearing date. She said that she left a forwarding address with the post office to have her mail sent to a P.O. Box. She further asserted that she knows that some of her mail was not forwarded because certain bills she did not receive became past due. She acknowledged that she never informed NASD of her move or her new address. At the close of the hearing, Tan's attorney argued that notice of the hearing was improper under the Texas Arbitration Act ("TAA"). Tex. Civ. Prac. & Rem. Code Ann. ' 171.001-.098 (Vernon 2005). Defense counsel objected that this argument had not been previously made. The trial court indicated that it would take the issue under advisement. The court denied the Motion for New Trial. Analysis In her single issue on appeal, Tan contends that the trial court erred in confirming the arbitration award because she did not receive notice of the hearing date as required by the TAA and the NASD Code of Arbitration Procedure. She further argues that the lack of notice violated her due process rights under the 14th Amendment to the United States Constitution. U.S. Const. amend. XIV. We review a trial court's order confirming 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). The scope of our review is extraordinarily narrow, and we indulge every reasonable presumption in favor of upholding the arbitration award. Id. We begin by noting that because the parties entered into the Uniform Submission Agreement, thereby agreeing to proceed under NASD procedures, the hearing notice provision of the TAA, section 171.044, does not apply to this case. The section itself begins: "Unless otherwise provided by the agreement to arbitrate, the arbitrators shall set a time and place for the hearing and notify each party." Tex. Civ. Prac. & Rem. Code Ann. ' 171.044(a).[5] Additionally, section 171.001 provides generally that written agreements to arbitrate are valid and enforceable. Id. ' 171.001(a). Indeed, courts have consistently held that when parties agree to arbitrate under certain rules, they are bound by those rules. See, e.g., In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (orig. proceeding) (holding that by agreeing to arbitrate under certain rules the parties were bound by those rules); In re Scott, 100 S.W.3d 575, 579 (Tex. App.-Fort Worth 2003, orig. proceeding) (holding that agreement to abide by NASD arbitration rules obligated party to arbitrate under those rules); In re Neutral Posture, Inc., 135 S.W.3d 725, 729 (Tex. App.-Houston [1st Dist.] 2003, orig. proceeding) ("The choice of particular arbitration rules by the parties in an agreement to arbitrate binds the parties to the provisions of those rules . . . ."); In re John M. O'Quinn, P.C., 155 S.W.3d 195, 201 (Tex. App.-Tyler 2003, orig. proceeding) ("Once the parties specify which rules govern arbitration, they are bound by those rules. Furthermore, the trial court has no discretion to modify or otherwise contravene the specified rules.").[6] Here, the parties all signed the Uniform Submission Agreement, thereby agreeing to arbitrate under the NASD Code of Arbitration Procedure. As will be discussed below, the NASD Code contains its own rules regarding notice. Accordingly, the hearing notice issue was not governed by the TAA. We next turn to the NASD Code of Arbitration Procedure. Tan contends that section 10315(a) of the NASD Code requires notice of hearing by personal service, registered mail, or certified mail. We read the section in question as more specific. It states in relevant part: The Director shall determine the time and place of the first meeting of the arbitration panel and the parties, whether the first meeting is a pre-hearing conference or a hearing, and shall give notice of the time and place at least 15 business days prior to the date fixed for the first meeting by personal service, registered or certified mail to each of the parties unless the parties shall, by their mutual consent, waive the notice provisions under this Rule. The arbitrators shall determine the time and place for all subsequent meetings, whether the meetings are pre-hearing conferences, hearings, or any other type of meetings, and shall give notice as the arbitrators may determine. Attendance at a meeting waives notice thereof. NASD Code of Arbitration Procedure ' 10315(a). In her affidavit, Tan acknowledged that she participated in the first three meetings, which were apparently pre-hearing conferences conducted by telephone conference call.[7] Thus, under section 10315(a), notice of the hearing itself was to be given as determined by the arbitrators. Lee contends - and the record supports the conclusion - that the arbitrators determined to give notice by regular mail. The record further supports the conclusion that such notice was given. Specifically, the record contains not only the aforementioned language in the award but also two letters from NASD to Tan informing her of the hearing dates and a third letter from NASD explaining that a hearing notification letter was mailed to Tan and was not returned as undelivered. In the award, the arbitrators found that Tan "received due notice of the hearing." See Brozo v. Shearson Lehman, Hutton, Inc., 865 S.W.2d 509, 511 (Tex. App.-Corpus Christi 1993, no pet.) (deferring to arbitrators' finding regarding whether notice was sufficient under New York Stock Exchange arbitration rules). Accordingly, we find that notice was properly provided under the NASD Code. Tan additionally argues that the evidence regarding notice being sent by regular mail creates only a rebuttable presumption of notice. She asserts that once she denied ever having received notice, the presumption vanished. In making this argument, she references two cases discussing Rule 4(a)(6) of the Federal Rules of Appellate Procedure; (Nunley v. City of Los Angeles, 52 F.2d 792 (9th Cir. 1995), and Cote v. Chase, 914 F. Supp. 739 (D.N.H. 1996)); a case involving mailed notice of a product defect (Warfield v. Byron, 436 F.3d 551 (5th Cir. 2006)); and a case involving a cancellation notice from an insurance company (Anchor Cas. Co. v. Crisp, 346 S.W.2d 364 (Tex. Civ. App.CAmarillo 1961, no writ)). We do not believe these cases to be sufficiently on point to be persuasive. Other authority, more directly on point, holds that notice of an arbitration hearing by regular mail is sufficient to demonstrate that due notice was given when the arbitration rules permit such service, even in light of a party's denial that notice was received. See Gingiss Intern'l, Inc., v. Bormet, 58 F.3d 328, 332-33 (7th Cir. 1995)[8]; see also Brozo, 865 S.W.2d at 511 (rejecting claim that notice to attorney was insufficient even in light of claim that party did not receive notice); Gen. Universal Sys., Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 14-01-00509-CV, 2003 WL 1884198, at *1-2 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (rejecting claim that notice by regular mail was insufficient under applicable arbitration rules, but it is unclear whether party received actual notice). Furthermore, the notion that service under the chosen rules creates only a rebuttable presumption of notice runs counter to the widely cited principle that once parties choose certain arbitration rules, they are bound by those rules. See, e.g., In re Oakwood Mobile Homes, 987 S.W.2d at 574; In re John M. O'Quinn, P.C., 155 S.W.3d at 201. Accordingly, we hold that Tan's denial of receipt did not render service by regular mail insufficient. Lastly, we address Tan's assertion that the manner of notice violated her constitutional rights to due process. We recognize that "[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections." Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). However, we do not believe that this general statement of legal principles applies to this notice of an arbitration hearing; the parties agreed to be bound by a particular set of rules, and notice was effected according to those rules. See Brozo, 865 S.W.2d at 511. Tan does not make any specific arguments regarding whether the notice in this case was reasonably calculated to apprise her of the suit. Instead, she appears to rely on her contention that because the notice did not satisfy the requirements of the TAA and the NASD Code, her due process rights were violated.[9] Because we hold above that the TAA does not apply to this case and notice was sufficient under the NASD Code, we find Tan's due process arguments to be without merit. Accordingly, we overrule Tan's sole issue.[10] We affirm the trial court's judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion/Opinion filed February 27, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. [1] The arbitration award reflects that these conferences occurred on March 20, 2002, October 10, 2002, and April 16, 2003. [2] Tan made these statements in an affidavit attached to her Motion for New Trial. [3] The arbitration co-defendant, who was also held liable, also answered in the trial court but is not a party to this appeal. [4] In the motion, Tan argued that under NASD rules, plaintiff's counsel is responsible for notifying the defendants of the continuation of a hearing. Tan does not make this argument on appeal. [5] The majority of the sections of the TAA governing arbitration procedures-as opposed to governance of trial court proceedings to compel or stay arbitration or to confirm, modify, or vacate an arbitration awardCcontain similar language deferring to the parties' agreement in the event that it references different procedures. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.041, .042, .043, .045, .046, .047, .053, .055. The remaining sections governing arbitration procedure primarily either grant certain power to the arbitrators (see sections 171.049 (arbitrators may administer witness oaths), 171.050 (arbitrators may authorize depositions), 171.051 (arbitrators may issue subpoenas), and 171.054 (arbitrators may modify or correct an award)); or protect certain rights (see sections 171.048 (ensuring a party's right to be represented by an attorney) and 171.052 (requiring fees for third-party witnesses)). This statutory scheme evidences a clear legislative intention to defer to the parties' agreement in matters of arbitration procedure, with parties free to choose the TAA as controlling, to choose other law as controlling, or to not choose and allow the TAA (or other law) to control by default. [6] Lee suggests that because this case involves securities transactions, the arbitration was governed by the Federal Arbitration Act ("FAA") instead of the TAA. 9 U.S.C.A. ' 1-16 (West 1999). However, federal courts are consistent in holding that FAA procedures do not apply when the parties have agreed to arbitrate under other rules. See, e.g., Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989) ("[P]arties are generally free to structure their arbitration agreements as they see fit. . . . [They may] specify by contract the rules under which that arbitration will be conducted."); Gingiss Intern'l, Inc., v. Bormet, 58 F.3d 328, 332-33 (7th Cir. 1995) (holding that notice of hearing sent via regular mail was sufficient under American Arbitration Association=s Commercial Arbitration Rules, which the parties had agreed to be bound by, despite the fact that state law required notice by registered mail or personal service). [7] The NASD Code expressly permits pre-hearing conferences to be conducted by conference call. See NASD Code of Arbitration Procedure ' 10321(d)(1). [8] Tan argues that Gingiss is distinguishable from the present case because, according to Tan, the appellants in Gingiss argued that they did not receive proper notice while Tan asserts that she did not receive any notice at all. However, the court in Gingiss clearly points out that the appellants claimed to have not received "actual notice"; thus, Tan is incorrect about the facts of the case. 58 F.3d at 332. Tan further asserts that Gingiss is distinguishable because four mailings were sent to the appellants in that case and Tan asserts here that only one mailing was attempted. We are unpersuaded by this distinction. First, the record reflects that two letters were sent to Tan regarding the hearing date. Second, the court in Gingiss does not rely on the number of attempts in holding that sufficient notice was undertaken. [9] None of the due process cases cited by Tan are particularly relevant to the issues in the present case. See Villareal v. San Antonio Truck and Equip., 994 S.W.2d 628, 630-33 (Tex. 1999) (reversing dismissal for want of prosecution where notice of hearing did not adequately apprise party of intent to dismiss); LBL Oil Co. v. Int'l Power Serv., Inc., 777 S.W.3d 390, 390-91 (Tex. 1989) (reversing default judgment because party had no actual or constructive notice of trial setting); Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 163 (Tex. App.-Houston [14th Dist.] 1993, no writ) (reversing dismissal for want of prosecution where record did not reflect notice and party denied receipt of notice without contradiction). [10] Because of our holding on Tan's substantive issue, we need not consider Lee's appellate contention that Tan failed to timely apply to vacate the arbitration award.

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