Brown v. Eubank

• Decision Date: 13 June 1969
• Docket Number: No. 17302,17302
• Citation: 443 S.W.2d 386
• Parties: D. P. BROWN, Appellant, v. Joe R. EUBANK, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 386

443 S.W.2d 386

D. P. BROWN, Appellant, v. Joe R. EUBANK, Appellee.

No. 17302.

Court of Civil Appeals of Texas Dallas.

June 13, 1969.

Luther Truett, of Moses & Truett, McKinney, for appellant.

Roland Boyd, of Boyd, Viegel & Gay, McKinney, for appellee.

BATEMAN, Justice.

Our former opinion is withdrawn and the following substituted for it.

This is a boundary dispute which was submitted to arbitration. The appeal is from a judgment reciting that it is based upon the award of the arbitrators.

The first trial of the case resulted in a judgment establishing the boundary, but this judgment was reversed and remanded. Brown v. Eubank, 378 S.W.2d 707 (Tex.Civ.App., Tyler 1964, writ ref'd n.r.e.) . Thereafter, on March 1, 1965, the trial court entered an order, which was also signed by the parties and their attorneys, as follows:

'On this 1st day of March, 1965, came on to be heard the above and entitled cause and came the parties in person and through their attorneys of record and announced to the Court that the matters in controversy between them had been compromised as follows:

'The parties have agreed that Joe R. Eubank will select a person to serve on a board of arbitration to settle the dispute, that D. P. Brown will select a second member of such board and that the Judge of this court will select the third member, such third member to be a State licensed land surveyor. Said surveyor shall proceed to survey both the Brown tract and the Eubank tract to the extent necessary to determine, as near as possible, the boundary lines between the respective tracts owned by the parties. After such survey has been completed the Board of Arbitration will consider such survey and all matters in controversy between the parties all shall, based upon their findings therein, locate the property lines between the parties. The decision of such Board shall be conclusive, final and binding upon both parties without right of appeal. Such decision shall consist of no written record except field notes describing the respective tracts owned by the parties and delineating the respective common lines, which shall be evidenced by permanent boundary markers or monuments, and upon such decision having been filed with the Court the Court shall render judgment thereon vesting or divesting title as the case requires.

'The Court having consider said settlement is of the opinion and finds that the same should be approved and it is therefore ordered that the terms thereof be implemented by the parties each furnishing to the Court the name of the respective members of the Board by not later than Monday, March 8, 1965.

'All costs of this arbitration and survey shall be borne jointly by and between plaintiff and defendant irrespective of the placement of the line.

'The Board of Arbitration will function under such procedures as may be prescribed by this Honorable Court in its sole discretion.

'IN WITNESS of the foregoing this order is entered and randered on this 1st day of March, 1965.

'David H. Brown, Judge'

In the discussion leading up to this order, Judge Brown stated that he would select as the third arbitrator a licensed land surveyor who did not reside in Collin County. Eubank selected Fred G. Agnew as an arbitrator and Brown selected Jack Anderson. In February 1967, nearly two years after the entry of the said agreed order, Judge Brown selected John V. Cantrell, a licensed land surveyor of Collin County. By letter dated February 15, 1967, Brown's attorney wrote Judge Brown, in part, as follows:

'Frankly, I am disturbed about the arbitration as it was my understanding two years ago that the third arbitrator was to be an out of county surveyor and same was discussed even though the 'out of county survey' was not included in the arbitration as signed. While the surveyor named is a personable young man and so far as I know competent, I am disturbed over the fact that Mr. Boyd's firm has represented approximately 95% Of his family as far back as I can remember and there are manifestations already afoot that don't look good. I realize I am tied, however.' (Italics ours.)

Judge Brown did not reply to that letter. At some time in the spring of 1967 the three arbitrators met in Judge Brown's office and heard the attorneys state the positions of their respective clients. On one or two other occasions in the spring or summer of 1967 Brown's attorney again complained to Judge Brown of his appointment of Mr. Cantrell instead of an out of county surveyor. In November, 1967, after having talked to the parties separately on their respective farms, and after some surveying had been done, the three arbitrators met and Cantrell sent the following letter, dated November 9, 1967, to Judge Brown:

'In regard to the Brown v. Eubanks Land Dispute, I am enclosing a tentative settlement agreed upon by the three commissioners appointed by you.

'I have attempted to write this in such form that will be approved by you. Please look it over and if satisfactory, return it to me and I will have the commissioners sign same.'

Attached to that letter was a set of field notes describing the boundary line between the two farms and providing at the bottom places for signatures of the three arbitrators. However, the field notes were unsigned.

Cantrell told Judge Brown that Anderson would not agree to the decision. Judge Brown testified that he 'was disturbed because it was not going to be unanimous,' and that he laid the letter and field notes aside without taking any action on them. On January 4, 1968, Brown's attorneys filed a pleading in which they 'respectfully withdraw their offer to arbitrate as per agreement of March 1, 1965,' on the grounds that the terms of arbitration had never been consummated, that the surveyor named by the court was not an out of county surveyor but was a man born and reared in Collin County, and that Brown was then a man past 89 years of age 'and would like to have the matter disposed of.' They requested that the court set the case for jury trial. No action was taken immediately on this request.

On March 22, 1968 the District Clerk of Collin County placed her file mark on another copy of the field notes, dated February 22, 1968 and signed by Cantrell and Agnew, identical to the field notes attached to Cantrell's letter to Judge Brown of November 9, 1967, and filed the same among the papers of this cause.

On March 25, 1968 Eubank filed his motion for judgment based upon the report of a majority of the arbitrators. Brown filed a contest of that motion on the grounds that the terms of the arbitration agreement were not carried out, in that (1) the judge had named a Collin County man to be the surveyor and third arbitrator, contrary to his oral statement made at the time of the arbitration agreement, (2) no survey field notes describing the respective tracts owned by the parties and delineating the respective common lines were ever submitted to Mr. Anderson, the arbitrator chosen by Brown, until March 23, 1968, more than two months after Brown had withdrawn his agreement to arbitrate, and (3) he was entitled to a jury trial. Judge Brown recused himself and the matter was heard by Honorable W. C. Boyd, Judge of the 16th Judicial District of Texas, sitting for Judge Brown. Judge Boyd heard the matter without the aid of a jury and rendered judgment for Eubank based on the field notes submitted by the two arbitrators, and specifically denying Brown's motion to withdraw from the arbitration.

By his first point of error on appeal Brown complains of the judgment because he had timely withdrawn his agreement to arbitrate. In his second point of error he complains of the refusal of his timely demand for a jury trial. These points will be considered together, for they both raise the specific question of whether Brown had the right to revoke his agreement to submit the controversy to arbitration.

The general rule is that either party may revoke a common law submission to arbitration at any time before an award has been made, leaving to the aggrieved party his action for damages for breach of contract. 6 C.J.S. Arbitration and Award § 33, p. 173; 6 Tex.Jur.2d, Arbitration and Award, § 22, p. 58; Tejas Dev. Co. v. McGough Bros., 165 F.2d 276 (5th Cir. 1947); Deep South Oil Co. of Texas v. Texas Gas Corp., 328 S.W.2d 897, 906 (Tex.Civ.App., Beaumont 1959, writ ref'd n.r.e.).

However, if the submission was under the Texas arbitration statutes then in effect, ¹ the agreement filed thereunder would have bound the parties to that mode of trial. 6 Tex.Jur.2d, Arbitration and Award, § 25, p. 59.

The appellee Eubank urges that this was a statutory arbitration, although not so denominated, and that in any event, having been made in the form of an order of the trial court, signed by the judge thereof and entered in the minutes of the court, it was made under a 'rule of court' and therefore so binding on both parties as not to be revocable by either of them. We agree with appellee in the second contention.

We consider it unimportant whether the parties intended this to be a statutory arbitration, and hence do not decide whether the agreement was in substantial compliance with the statutes. Forshey v. Galveston, H. & H. Railroad Company, 16 Tex. 516 (1856). It is our opinion that under the circumstances presented by this record Brown did not have the right to withdraw from the arbitration agreement. It has been held in other jurisdictions that arbitration agreements which would otherwise be considered common law submissions, when made...