Summary
setting aside arbitration award where unauthenticated copy of award amounted to no evidence, citing Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no pet.)
Summary of this case from In re Estate of GuerreroOpinion
No. 05-07-00379-CV
Opinion Filed April 2, 2008.
On Appeal from the County Court at Law No. 1, Collin County, Texas, Trial Court Cause No. 001-2683-06.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
Frank G. Gruber appeals the trial court's judgment confirming an arbitration award issued in favor of CACV of Colorado, LLC. In two issues, appellant contends we must reverse the trial court's judgment confirming the arbitration award because appellee failed to provide (1) evidence that the Texas General Arbitration Act applied to this award, or (2) admissible evidence of the arbitration award itself. For the following reasons, we reverse the trial court's judgment confirming the arbitration award.
Background
Appellee filed its petition seeking confirmation of an arbitration award and attached a copy of the award to the petition. Appellant answered with a plea to the jurisdiction and a general denial. At the hearing on its request for confirmation of the award, appellee offered Plaintiff's Exhibit 2 in support of its request. Plaintiff's Exhibit 2 consists of a letter notifying appellant of the award and a copy of the award against appellant. Appellant objected to the copy of the award as hearsay and because it was not properly authenticated. Appellee did not attempt to establish a foundation for admission of the award or otherwise attempt to authenticate the award. Rather, appellant asked the trial court to take judicial notice of the award because it had been presented to the trial court as an attachment to its petition and at the "formal pretrial where we were to exchange exhibits." Appellee objected that the copy of the arbitration award contained in the file was not the type of document suitable for judicial notice. After some discussion, the trial court took "judicial notice that it's in the file." The trial court later confirmed the arbitration award. This appeal followed.
Discussion
In his second issue, appellant contends the trial court erred by confirming the award because there is no admissible evidence of an arbitration award in the record. Specifically, he claims the copy of the arbitration award attached to appellee's application is not suitable for judicial notice, and is hearsay and not a self-authenticating document. In response, appellee does not attempt to show there is evidence of the award in the record, but rather contends no such evidence is necessary. We agree with appellant.
Although section 171.087 provides that unless grounds are offered for vacating, modifying or correcting the arbitration award the court shall confirm the award upon application of the party, the party applying for confirmation must nevertheless establish there is an arbitration award to be confirmed. Cf., Brozo v. Shearson Lehman Hutton, Inc., 865 S.W.2d 509, 510 (Tex.App.-Corpus Christi 1993, no pet.) (citing Ridgill Bros. v. Dupree, 85 S.W. 1166, 1167 (Tex.Civ.App. 1905, no pet.) (after plaintiff applied for and proved rendition of award, defendant had burden to establish facts that would relieve him from award's effect)). Thus, we must review the record to determine if there is any evidence establishing the arbitration award.
At the hearing on appellee's application, appellee requested the trial court to take judicial notice of the copy of the award attached to its application for confirmation of the arbitration award. Texas Rule of Evidence 201 provides that a judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Tex. R. Evid. 201; Dallas Co. Constable Pct. 5 Michael Dupree v. KingVision Pay-Per-View, Ltd., 219 S.W.3d 602, 613 (Tex.App.-Dallas 2007, no pet.). A court may take judicial notice of pleadings that have been filed. However, a court may not take the pleadings to be true absent testimony, other proof, or admissions by the other party. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ). The court taking judicial notice of the contents of its file does not elevate those averments into proof. See Tex. Dep't of Pub. Safety v. Claudio, 133 S.W.3d 630, 633 (Tex.App.-Corpus Christi 2002, no pet.) (judicial notice of pleadings legally insufficient evidence to support element of expunction); Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 651 (Tex.App.-Corpus Christi 2002, no pet.) (same). Nor are documents attached to pleadings evidence. Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex.App.-San Antonio 2004, no pet.). Simply attaching a document to a pleading does not make the document admissible as evidence, dispense with proper foundational evidentiary requirements, or relieve a litigant of complying with other admissibility requirements. Id.
Here, the trial court took judicial notice that a copy of the arbitration award was in its file. However, that did not elevate the copy of the arbitration award attached to appellee's pleading to proof of the arbitration award. And, appellee did not attempt to provide the trial court with proper foundational requirements such as a business record affidavit nor did it show that the document was otherwise self-authenticating. See Tex. R. Evid. 902 (setting out requirements for self-authenticating documents). Thus, after reviewing the record, we agree with appellant that there is no evidence establishing an arbitration award. We sustain appellant's second issue. Having done so, we need not address appellant's first issue.
We reverse and set aside the trial court's judgment confirming the arbitration award.