Lindley v. FIA Card Services NA [BofA] - Confirmation of Arb Award Set Aside on Appeal

Cardholder "wins" risky appeal from trial court's default judgment confirming arbitration award entered on FIA Card Services NA [Bank of America] credit card debt in an amount substantially lower than the amount awarded by the arbitrator. Houston Court of Appeals reverses and remands based on the discrepancy, which was not supported by any evidence in the record. Consumer will now face prospect of judgment for the entire amount, unless consumer can demonstrate that there are other reasons why the trial court should not confirm it -- a tall order. Lindley v. FIA Card Services, N.A. f/k/a MBNA America Bank, N.A. (Tex.App.- Houston [1st Dist.] Feb. 18, 2010) (restricted appeal, amount of judgment confirming arbitration award varied from arbitration award, no evidence supporting modification of amount) MEMORANDUM OPINION BY JUSTICE LAURA CARTER HIGLEY 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. Background 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 award. In August 2007, FIA sought a default judgment, which the trial court denied. Trial was set for March 4, 2008. 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 granted. 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 award. Accordingly, we sustain Lindley’s third issue. Conclusion 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. [footnotes omitted] REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by 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. [FIA is the credit card arm of Bank of America, BoA, BofA] Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Linda Storey TAGS: Credit card debt arbitration, debt collection, suit / motion to confirm arbitration award, judicial confirmation and modification of award by arbitrator, MBNA Bank of America d/b/a FIA Card Services NA arbitration, debt collection lawsuits