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At a Glance:
Air Force Village Foundation, Inc. v. Asbury
June 30, 2004
Unpublished Opinion

Air Force Village Foundation, Inc. v. Asbury

Court of Appeals of Texas,

San Antonio.

AIR FORCE VILLAGE FOUNDATION, INC., d/b/a Air Force Village II, Appellant


Robert G. ASBURY, Appellee.

No. 04–03–00373–CV.


June 30, 2004.

From the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2003–CI–01242; Pat Boone, Judge Presiding.

Attorneys & Firms

Kristin L. Bauer, Jackson Lewis, L.L.P., Dallas, for appellant.

Jeffrey R. Davis, White & Davis, P.C., Beth Watkins Squires, San Antonio, for appellee.

Sitting: KAREN ANGELINI, Justice.


Opinion by KAREN ANGELINI, Justice.

*1 Air Force Village II (“AFV”) appeals from the trial court’s modification of the arbitrator’s award, arguing that the trial court had no authority to modify the arbitrator’s award. We agree and reverse the trial court’s judgment.


Robert G. Asbury was employed as a night security guard by AFV, a retirement community. While lifting a resident, Asbury injured his back. After completing two months of physical therapy, Asbury returned to his usual duties at work. A few days later, Asbury injured his back a second time while lifting the same resident. Asbury filed two workers’ compensation claims. Soon thereafter, Asbury was fired due to “insubordination.” Asbury, believing that AFV fired him because he filed the workers’ compensation claims, brought suit against AFV for violating chapter 451 of the Labor Code. Because the terms of Asbury’s employment contract provided for binding arbitration of disputes, an arbitrator heard Asbury’s claim. After a hearing, the arbitrator found that AFV had violated chapter 451 and awarded Asbury damages and costs. Because the arbitrator failed to order reinstatement, Asbury wrote a letter to the arbitrator requesting that he be reinstated. The arbitrator denied his request.

Asbury then filed an “Application to Vacate, Modify or Correct an Award and Confirmation of an Arbitration Award,” arguing that the trial court should vacate and/or modify the Arbitrator’s decision and order Asbury reinstated. According to Asbury, under Texas law, the arbitrator had no discretion to refuse to order reinstatement. The district court agreed with Asbury and entered a “Judgment to Confirm and Modify or Correct an Arbitration Award.” The district court confirmed that part of the arbitrator’s decision awarding Asbury damages for his chapter 451 claim. However, the trial court then ordered Asbury be reinstated:

Pursuant to § 451.001 of the Texas Labor Code had occurred.

AFV appeals.


An arbitrator’s award has the same effect as the judgment of a court of last resort. Stieren, 103 S.W.3d at 605.


*2 In its first point of error, AFV alleges that because Asbury failed to show any statutory or common law grounds for modification of the arbitration award, the district court erred in modifying it. AFV argues that at most, the arbitrator’s refusal to award reinstatement was a mistake of law which is not a sufficient ground to modify or vacate an arbitration award. Particularly, AFV points out that the arbitrator examined Asbury’s request for reinstatement, but denied it because he believed that Asbury failed to prove that he was physically capable of returning to his former position pursuant to Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e), a belief that may be a mistake of law but not a sufficient ground for modification.

In response, Asbury argues that the district court did have a statutory ground for vacating (not modifying) the arbitrator’s award: section 451.001 and appellant affirmatively requested reinstatement, the trial court erred in failing to order that appellant be reinstated to his former position .” Id.

Relying on Martin, Asbury argues that the arbitrator only had authority to determine whether AFV had violated chapter 451. According to Asbury, once the arbitrator made that determination, he was required to order reinstatement:

The plain language of [section 171.088(a)(3)(A).

*3 We disagree.

The Texas Supreme Court has held that the “authority of arbitrators is derived from the arbitration agreement and is limited to a decision of the matters submitted therein either expressly or by necessary implication.” Barsness, 126 S.W.3d at 241.

Here, however, the arbitrator was given the authority to decide whether Asbury was entitled to reinstatement. The arbitration agreement states:

any controversy or claim (“Dispute”) arising out of or in any way relating to an employee’s employment with [AFV] or termination of employment with [AFV] shall be submitted to and settled by final and binding arbitration in accordance with AFV’s arbitration procedures. Judgment on any award rendered by an arbitrator may be entered and enforced in any court having jurisdiction thereof.

(emphasis added). This language encompasses whether Asbury was entitled to reinstatement. Thus, in determining that Asbury was not entitled to reinstatement, the arbitrator did not exceed his authority. The arbitrator may have incorrectly applied the law, but he did not exceed his authority. And, mistake of fact or law or errors in the application of substantive law are not sufficient grounds to vacate the arbitration award. Stieren, 103 S.W.3d at 605.

Further, the arbitration agreement gave the arbitrator power as judge and jury. The agreement states that the arbitrator shall enter a final judgment that shall be enforced in any court. Thus, Asbury’s argument that the arbitrator was a mere fact-finder is contrary to the plain language of the the agreement.

Besides section 171.088, Asbury points to no other statutory or common-law grounds in support of the trial court’s action and we find none. We, therefore, sustain AFV’s first issue.2


Having sustained AFV’s first issue, we reverse the judgment of the trial court and remand the cause for entry of judgment consistent with this memorandum opinion.



Asbury argues that the trial court partially vacated the award (instead of modifying it) because there are different statutory grounds for vacating versus modifying. However, because we find no merit in Asbury’s argument that the trial court had authority to vacate the award under section 171.088(a)(3)(A), we need not decide whether the trial court partially vacated the arbitrator’s award or whether it modified the award. Even if the trial court, as argued by Asbury, vacated the award, it still had no authority for doing so.


Having sustained this issue, we need not reach the other issues presented.

End of Document