STEPHEN LOVE AND LAURIE LOVE v. MICKEY MARLOW TAMERA MARLOW HOMES INC AND FREDERICK BROWN (2026)

OPINION

Stephen R. Love and Laurie Love appeal from the trial court's judgment confirming an arbitration award. In two issues, the Loves contend the trial court erred in (1) granting appellees Mickey Marlow and Tamera Marlow's motion to confirm the arbitrator's award without providing notice of a hearing or submission date on the motion and (2) denying the Loves' motion for new trial. Concluding that the trial court erred in granting the motion to confirm without notice of hearing or submission, we reverse and remand this cause for further proceedings consistent with this opinion.

I. Background

This dispute arises from the Loves' 2022 purchase of a home from the Marlows. The Loves sued the Marlows in district court for breach of contract, common-law fraud, statutory real estate fraud, and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), claiming that the Marlows failed to disclose certain defects. The Loves joined the builder, B&J Custom Homes (B&J), and Frederick Brown, B&J's principal, suing them for breach of express warranty, breach of implied warranty of good and workmanlike construction, and violations of the DTPA.

The parties agreed to an order abating the case pending arbitration. The Marlows prevailed in arbitration on the claims of breach of contract, common-law fraud, statutory real estate fraud, and DTPA violations; the Loves prevailed on the express-warranty claims against B&J; B&J and Brown prevailed on the claims of breach of implied warranty of good and workmanlike construction and violations of the DTPA; and Brown also prevailed on the express-warranty claims. The arbitrator awarded the Loves a total of $201,633.75 in damages and attorney fees against B&J and awarded the Marlows a total of $76,852.64 in attorney fees and costs against the Loves. The arbitrator also awarded contingent attorney fees of $3,000.00 to the movants in the event the Loves or the Marlows had to move for confirmation in order to collect the award, $10,000.00 to the prevailing party or parties in the event of an unsuccessful trial-court challenge to the award, $15,000.00 to the prevailing party or parties in the event of an unsuccessful appeal to a court of appeals, and $15,000.00 to the prevailing party or parties in the event of an unsuccessful appeal to the Supreme Court of Texas.

Less than a month after the arbitrator signed the final award, the Marlows filed in the trial court a motion for final judgment confirming the arbitration award. The Marlows served the motion on the Loves. The record does not reflect that the motion was set for hearing or submission, nor does the record reflect any party received notice that the motion was set for hearing or submission. Seven days after the Marlows' motion was filed, the trial court signed a final judgment granting the motion and confirming the award. The judgment attached the award and decreed that the trial court “enters judgment in this cause in accordance with the Arbitration Award signed on March 5, 2025, which is attached as Exhibit 1 to this Order and incorporated herein by reference for all purposes.”

The Loves did not receive notice or acquire actual knowledge of the judgment until thirty-four days after the trial court signed it. The Loves moved to extend post-judgment deadlines under Rule of Civil Procedure 306a. The trial court granted the Loves' rule 306a motion and reset the post-judgment deadlines to run from thirty-four days after the signing of the judgment (the “reset judgment date”).

The Loves filed a motion to vacate or modify the arbitration award twenty-two days after the reset judgment date and ninety days (and less than three months) after the date of delivery of the arbitrator's award, and they filed a motion for new trial thirty days after the reset judgment date. The Loves' ground for new trial was that the trial court's final judgment “was entered without notice or a hearing in violation of due process,” and they also argued that they were not required to satisfy the requirements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. [Comm'n Op.] 1939), but in the alternative submitted evidence and argued that the judgment should be set aside under Craddock.¹ The Loves asserted as grounds for vacatur or modification of the arbitration award (1) that the award was procured by fraud, (2) that the arbitrator exceeded his authority, (3) that the arbitrator was partial, and (4) that there was a mistake in the description of a critical material date referred to in the award. They requested remand of the dispute to a new arbitrator for rehearing or, in the alternative, an evidentiary hearing to determine the extent to which fraud or misconduct affected the award.

The record does not reflect that the trial court set the Loves' motion to vacate or modify for hearing or submission. The trial court did not rule on the motion.

The trial court heard and denied the Loves' motion for new trial. The trial court did not hear the merits of the Loves' motion to vacate or modify the arbitration award during the hearing on the motion for new trial.

The Loves appealed, asserting the trial court (1) erred by ruling on the motion to confirm the arbitration award without providing notice of a hearing or submission date and (2) abused its discretion in denying their motion for new trial.

II. Arbitration Proceedings and Notice

A. Choice of law

The parties disagree as to whether the Texas Arbitration Act (TAA) or the Federal Arbitration Act (FAA) applies. The FAA and TAA may apply concurrently. See In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125, 127–28 (Tex. 1999) (orig. proceeding) (per curiam) (explaining that a choice of law provision selecting Texas law does not exclude the application of federal law). “The TAA and the FAA may both be applicable to an agreement, absent the parties' choice of one or the other.” Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 98 n.64 (Tex. 2011). The arbitration agreement at issue provides that disputes of the parties shall be subject to binding arbitration “as provided by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) or, if applicable, by similar state statute.” The arbitration provision indicates that Texas law applies: “In any arbitration proceeding between the parties: a) All applicable Federal and State law (including Chapter 27 of the Texas Property Code) shall apply ․” In the event of a conflict, the FAA preempts the TAA. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 778–80 (Tex. 2006) (orig. proceeding). However, no party raises a conflict here, nor do we conclude any is raised on this record.

Regardless of which statute applies or whether both apply, the TAA and the FAA are substantially similar regarding the grounds upon which a party may seek vacatur or modification of an arbitration award. Howerton v. Wood, No. 02-15-00327-CV, 2017 WL 710631, at *2 (Tex. App.—Fort Worth Feb. 23, 2017, no pet.) (mem. op.) (citing 9 U.S.C. §§ 10(a), 11; Tex. Civ. Prac. & Rem. Code §§ 171.088, .091). Therefore, our analysis and conclusions are the same under either statute.

B. Standard of review

In their first issue, the Loves assert that the trial court erred in signing a final judgment without notice of a hearing or submission date in violation of their rights to due process and due course of law. Generally, we review de novo the trial court's decision to grant a motion to confirm an arbitration award. Skidmore Energy, Inc. v. Maxus (U.S.) Expl. Co., 345 S.W.3d 672, 677 (Tex. App.—Dallas 2011, pet. denied) (applying the TAA); Myer v. Americo Life, Inc., 232 S.W.3d 401, 407 (Tex. App.—Dallas 2007, no pet.) (applying the FAA). However, if the Loves were denied their due process rights, they are not required to set up a meritorious defense to be entitled to a new trial. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86 (1988) (holding that a defendant was entitled to have a default judgment against him set aside on the basis that he was not properly served with process regardless of whether he had a meritorious defense); Mosser v. Plano Three Venture, 893 S.W.2d 8, 12 (Tex. App.—Dallas 1994, no writ) (holding that a party who has been denied due process of law through lack of notice of a summary judgment hearing need not satisfy the Craddock requirements to obtain new trial). Therefore, if we conclude the Loves' rights to due process or due course of law were violated, our inquiry ends there, and we do not consider the merits of the motion to confirm or the motion to modify or vacate.

C. Applicable law

“The United States Constitution's Due Process Clause and the Texas Constitution's Due Course of Law Clause require adequate procedural due process for parties to a judgment, including notice of trial court proceedings.” B. Gregg Price, P.C. V. Series 1 - Virage Master LP, 661 S.W.3d 419, 422–23 (Tex. 2023) (per curiam) (citing Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 188–89 (Tex. 2022)). “It is well settled that the[ ] words [of the Due Process Clause] ‘require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Mitchell, 649 S.W.3d at 188–89 (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)). “[N]otice [of trial-court proceedings adjudicating rights] must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” B. Gregg Price, 661 S.W.3d at 423 (quoting Mullane, 339 U.S. at 314). “When parties are not afforded a meaningful opportunity to be heard, ‘the remedy for a denial of due process is due process.’ ” Id. (quoting Univ. of Tex. Med. Sch. at Hou. v. Than, 901 S.W.2d 926, 933 (Tex. 1995)).

The TAA and FAA also provide statutory due process rights. The TAA requires the court to “hear each initial and subsequent application under this subchapter in the manner and with the notice required by law or court rule for making and hearing a motion filed in a pending civil action in a district court or the business court, as applicable.” Tex. Civ. Prac. & Rem. Code § 171.093. We have explained that the purpose of section 171.093 is to expedite judicial treatment of arbitration matters by incorporating the notice requirements applicable to the motion procedure used in civil cases, which vary by motion type. See Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 804 (Tex. App.—Dallas 2008, pet. denied). Similarly, the FAA requires: “Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.” 9 U.S.C. § 6. “[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.”² Crossmark, Inc. v. Hazar, 124 S.W.3d 422, 430 (Tex. App.—Dallas 2004, pet. denied).

Rule of Civil Procedure 21 requires that “[a]n application to the court for an order and notice of any court proceeding, as defined in Rule 21d(a), not presented during a court proceeding, must be served upon all other parties not less than three days before the time specified for the court proceeding.” Tex. R. Civ. P. 21(b); see also Tex. R. Civ. P. 21a(c) (adding three days to the notice period when service is by mail). Rule 21d defines a “court proceeding” as “an appearance before the court, such as a hearing or trial.” Tex. R. Civ. P. 21d(a)(1). Rule 21 requires three days' notice to be served regardless of whether the application is orally argued or submitted without an oral hearing. Cf. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam) (holding that Texas Rule of Civil Procedure 166a does not require an oral hearing on a motion for summary judgment but does require notice of the date the motion will be heard orally or submitted without an oral hearing). Here, the Marlows' motion and the hearing would be subject to the general notice requirements of rules 21 and 21a. See Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex. App.—Dallas 2009, no pet.) (applying rules 21 and 21a to determine sufficiency of mailed notice of a hearing on a motion to confirm an arbitration award). But see Crossmark, Inc., 124 S.W.3d at 430 (“[I]f a party chooses to follow summary judgment procedure [for a motion to confirm an arbitration award] rather than the simple motion procedure authorized by the [TAA], it assumes the traditional burdens and requirements of summary judgment practice.”) (citing Tex. R. Civ. P. 166a; Mariner Fin. Group, Inc. v. Bossley, 79 S.W.3d 30, 32, 35 (Tex. 2002)).

III. Discussion

In support of their first issue, the Loves argue that the trial court violated their statutory and constitutional due process rights by entering final judgment confirming the arbitration award without notice of a hearing or submission date on the motion to confirm. We agree.

“Notice is ‘[a]n elementary and fundamental requirement of due process.’ ” B. Gregg Price, 661 S.W.3d at 422 (quoting Mullane, 339 U.S. at 314). Notice “in any proceeding which is to be accorded finality” must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane, 339 U.S. at 314. Here, when the Loves discovered that the trial court had already granted the motion to confirm, they were still within the deadlines for filing a motion to vacate or modify under the FAA and the TAA. See 9 U.S.C. § 12 (“within three months after the award is filed or delivered”); Tex. Civ. Prac. & Rem. Code § 171.088 (“not later than the 90th day after the date of delivery of a copy of the award to the applicant”). The lack of notice deprived them of their statutory opportunity to respond and seek vacatur, modification, or correction of the award or otherwise oppose the award.

Texas courts have plainly recognized respondents' constitutional right to notice of hearing or submission on various types of dispositive motions. In LBL Oil Co. v. International Power Services, Inc., the defendant had unsuccessfully challenged the trial court's personal jurisdiction by a motion to dismiss but had failed to file an answer, and the plaintiff filed a motion for default judgment that was granted without record evidence that either the motion or notice of a hearing had been served upon the defendant. 777 S.W.2d 390, 390 (Tex. 1989) (per curiam). The Texas Supreme Court held that if a party who has appeared in a suit had “no actual or constructive notice of the hearing” on a motion for default judgment that is “dispositive of the case,” the party is “entitled to notice of the [motion hearing] setting as a matter of due process.” Id. at 390–91 (addressing a Fourteenth Amendment federal due process challenge). In Martin, the Supreme Court held that while “not every hearing called for under every rule of civil procedure necessarily requires an oral hearing,” it is still a requirement that there be “notice of hearing or submission” on a motion for summary judgment. 989 S.W.2d at 359. Without such a requirement, there would be no way to determine “the time for response to the motion; without notice of hearing, the respondent cannot know when the response is due.” Id. In Texas Integrated Conveyor System, Inc. v. Innovative Conveyor Concepts, Inc., another summary-judgment appeal, this Court held that “[w]hen a hearing has been scheduled on a motion and the trial court grants that motion before the scheduled hearing date, the trial court violates the non-moving party's procedural due process right to be heard.” 300 S.W.3d 348, 363 (Tex. App.—Dallas 2009, pet. denied) (addressing Fourteenth Amendment due process and article I, section 9 Texas constitutional due course of law challenges). And in Gaskill v. VHS San Antonio Partners, LLC, the trial court had granted the defendants' Rule 91a motion to dismiss without notice of a hearing or submission. 456 S.W.3d 234, 237 (Tex. App.—San Antonio 2014, pet. denied). The court of appeals reversed, “hold[ing] that formal notice of a Rule 91a hearing must be provided to the parties, regardless of whether the trial court will hold an oral hearing.” Id. at 239.

While the foregoing authorities involved grants of a default judgment, two summary judgments, and a Rule 91a motion to dismiss, which differ in many respects from a final judgment confirming an arbitration award, all four types of proceedings involve a final adjudication of the rights of the parties. Due process is required before final adjudication of the parties' rights where the parties have appeared. See, e.g., LBL Oil Co., 777 S.W.2d at 390–91. We hold that these due process and due course of law protections apply equally to a motion to confirm an arbitration award because an order granting a motion to confirm constitutes a final adjudication of the rights of the parties.

Our holding is supported by persuasive authority from other courts. The Fort Worth Court of Appeals has recognized in Howerton that parties who have appeared in a case are “entitled to notice and the right to be heard on the post-arbitration motions [to confirm and to vacate, modify, or correct] as in civil cases generally.” 2017 WL 710631, at *4 (citing 9 U.S.C. § 6; Tex. Civ. Prac. & Rem. Code § 171.093). The Howerton court affirmed the judgment confirming the award, however, because the trial court had set the motion for a hearing, the confirmation judgment recited that all parties had been given notice of the hearing, and Howerton had filed an application to vacate or modify the award, which the trial court considered before granting the motion to confirm. Id.

In RZS Holdings AVV v. PDVSA Petroleo S.A., 506 F.3d 350 (4th Cir. 2007), the Fourth Circuit also recognized that due process protections apply to an arbitration-award confirmation proceeding. In that case, the district court entered a judgment confirming an arbitration award after a hearing conducted without notice to the opposing party. Id. at 358. The circuit court vacated the judgment. Id. RZS Holdings involved a more extreme factual scenario than this case: the court permitted RZS's counsel to withdraw, denied RZS's owner permission to proceed pro se, struck RZS's pro se pleadings, and then proceeded to confirm the award in a seven-minute ex parte hearing. See id. at 352, 355. Nevertheless, the court's core holding—that a judgment confirming an arbitration award entered without notice and opportunity to be heard violates due process, id. at 358—applies with equal force to the scenario presented in this case. The foregoing authorities consistently support the conclusion that the Loves had a due process right to notice that the motion for confirmation had been set for hearing or submission and a meaningful opportunity to be heard on the motion.

The Marlows point out that confirmation of an arbitration award is a summary proceeding that does not necessarily require a hearing, and they argue that notice was not required in this case because the Loves had not filed a motion to vacate, modify, or correct the arbitration award. They stress that the act of confirming an arbitration award is ministerial under both the state and federal arbitration statutes because “unless grounds are offered for vacating, modifying, or correcting an award ․, the trial court, on application of a party, shall confirm the award.” Tex. Civ. Prac. & Rem. Code § 171.087; accord 9 U.S.C. § 9 (“[T]he court must grant ․ an order [confirming the award] unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.”).

While the act of confirming an arbitration award may be ministerial when no party timely seeks to vacate, modify, or correct the award, see Tex. Civ. Prac. & Rem. Code § 171.087; 9 U.S.C. § 9, the Loves were not provided a meaningful opportunity to do so. The TAA and FAA both provide the statutory right to move for vacatur, modification, or correction of the award and, if such a motion is timely, the trial court must rule on the motion before or at the same time as it rules on a motion to confirm the award. See 9 U.S.C. §§ 9–12; Tex. Civ. Prac. & Rem. Code §§ 171.087–088, .091–.092. Both Civil Practice and Remedies Code section 171.087 and 9 U.S.C. § 9 “imply a due order of consideration: they contemplate that any motions to vacate, to modify, or to correct the award must be pending before the court for its consideration, or must already have been ruled on, at the time that the court considers the motion to confirm.” Hamm v. Millenium Income Fund, L.L.C., 178 S.W.3d 256, 262 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “[M]otions to modify, to vacate, and to correct an arbitration award should be heard either before or simultaneously with motions to confirm the award.” Id.; see also Quickset Concrete, Inc. v. Roeschco Constr., Inc., No. 05-16-00509-CV, 2017 WL 4021113, at *3 (Tex. App.—Dallas Sept. 13, 2017, pet. denied) (mem. op. on reh'g) (quoting the same language in Hamm). The parties do not dispute that the Loves' motion to vacate or modify was timely under both the FAA and TAA. On this record, where the trial court granted confirmation without notice before the deadlines for seeking vacatur or modification had passed, we disagree with the Marlows' assertion that the trial court's confirmation of the award was ministerial when the trial court failed to first provide a meaningful opportunity for the Loves to timely offer grounds for vacating, modifying, correcting the award.

The Marlows further argue that confirmation of an arbitration award is not equivalent to a trial and is generally meant to be a summary enforcement proceeding rather than a re-examination of the merits of the arbitration award. In support, they cite Guerra v. L&F Distributors, LLC, 521 S.W.3d 878, 887 (Tex. App.—San Antonio 2017, no pet.) (“[T]he FAA requires the trial court to enter judgment upon a confirmed arbitration award, without reviewing either the merits of the award or the legal basis upon which it was reached.”). The Marlows contend that, because confirmation is “streamlined and expeditious” and “different from the fact finding process of a trial,” Texas case law that requires notice and a meaningful opportunity to be heard in arbitration proceedings does not apply in post-arbitration applications to confirm or vacate an award such as this. Yet the case they cite, Ewing v. Act Catastrophe–Tex. L.C., 375 S.W.3d 545 (Tex. App.—Houston [14th Dist.] 2012, pet. denied), does not support their contention: Ewing did not involve an issue of notice of hearing or submission on a post-arbitration motion but instead involved an objection to the arbitration proceeding itself. Ewing did not address whether procedural due process principles apply to post-arbitration judicial proceedings. Id. at 551–52.

The Marlows note that the arbitration in this case was a private proceeding and argue that, therefore, the trial court's confirmation of the award was not a state action sufficient to implicate due process. All the cases the Marlows cite in support are distinguishable because, in all of them, the alleged constitutional violation occurred in the underlying arbitration and not in post-arbitration district court proceedings. See Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1190 (11th Cir. 1995) (addressing the contention that the district court's confirmation of an arbitration panel's award of punitive damages violated due process because the arbitration lacked the procedural protections and meaningful judicial review required for the imposition of punitive damages); Fed. Deposit Ins. Corp. v. Air Fla. Sys., Inc., 822 F.2d 833, 842 n.9 (9th Cir. 1987) (addressing a due process complaint about the denial of an oral hearing before the arbitrator); Sharp Corp. v. Hisense USA Corp., 292 F. Supp. 3d 157, 163 (D.D.C. 2017) (addressing a free-speech complaint about a foreign arbitral commission's emergency order enjoining Sharp from making disruptive or disparaging statements about Hisense as against U.S. public policy reflected in the First Amendment).

We conclude the trial court violated the Loves' right to due process and due course of law when it rendered judgment confirming the arbitration award without notice of submission or hearing, thereby depriving the Loves of a meaningful opportunity to be heard on a final adjudication of the parties' rights. We sustain the Loves' first issue on appeal.³

IV. Conclusion

Having sustained the Loves' first issue on appeal, we reverse trial court's judgment and remand the cause for further proceedings consistent with this opinion.

FOOTNOTES

1.   “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” Craddock, 133 S.W.2d at 126.

2.   The Marlows cite this proposition and argue that “if necessary” modifies both “evidentiary hearing” and “notice,” such that it is within the trial court's discretion to deny notice. We disagree. Crossmark, 124 S.W.3d at 430, cites provisions of both the TAA (“The Act specifically provides that an application under the Act is heard in the same manner and on the same notice as a motion in a civil case.”) and FAA (“Any application to the court hereunder shall be made and heard in the manner provided by law for the making and hearing of motions, except as otherwise herein expressly provided.”) that require notice but not necessarily an evidentiary hearing. Id. (citing 9 U.S.C. § 6; Tex. Civ. Prac. & Rem. Code § 171.093).

3.   Because we sustain the Loves' first issue, we need not and do not reach the Loves' second issue seeking the same relief. See Tex. R. App. P. 47.1.

GINO J. ROSSINI JUSTICE