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Click here for the full text of this decision FACTS:The appellees, Robert and Jane Cull, sued the appellants, Perry Homes A Joint Venture, Home Owners Multiple Equity Inc. d/b/a Home/RWC of Texas, and Warranty Underwriters Insurance Co., for the allegedly faulty construction of their home. Approximately a year after filing suit, the Culls filed a motion to compel arbitration. Although the appellants opposed arbitration, the trial court granted the Culls’ motion to compel arbitration. After arbitration was completed, the Culls filed a motion to confirm the arbitration award, and the appellants filed a motion to vacate or alternatively to modify the arbitration award. In its final judgment, the trial court confirmed the arbitration award. HOLDING:Affirmed. The appellants argue that the Culls waived their right to arbitrate. the test for determining waiver is two-pronged: 1. Did the party seeking arbitration substantially invoke the judicial process? and 2. Did the opposing party prove that it suffered prejudice as a result? Tex. Residential Mortgage LP v. Portman, 152 S.W.3d 861 (Tex. App. – Dallas 2005, no pet.). The parties participated in written and oral discovery, presented motions to compel discovery and received orders disposing of those motions. Although the appellants allege that the Culls opposed arbitration early, the Culls merely opposed the use of the American Arbitration Association; the Culls did not oppose arbitration as a whole. Further, this case is not a case in which a party who has tried and failed to obtain a satisfactory result in court then turns to arbitration. The court states that the appellants presented no evidence that they suffered prejudice in their response to the Culls’ motion to compel arbitration or at the hearing on the motion. The court rejects the appellants’ argument that the trial court erred by refusing to vacate the arbitration award because the arbitrator’s failure to disclose that he represented homeowners in residential construction cases constituted evident partiality. The arbitrator properly disclosed information that might indicate bias before the arbitration began, the court states, and the appellants did not object. The court disagrees with the appellants’ arguments that the arbitrator acted in manifest disregard of the law by awarding to the Culls expert witness fees and by disregarding the argument that the Culls had waived arbitration. Manifest disregard of the law is more than mere error or misunderstanding with respect to the law. Under this standard, the arbitrator clearly recognizes the applicable law, but chooses to ignore it. The court rejects the appellants’ argument that the Culls failed to meet their summary judgment burden to negate the appellants’ defense of evident partiality. The appellants did not conclusively prove that the arbitrator was evidentially partial. The trial court did not err by confirming the arbitrator’s award of post-arbitration attorney’s fees in its final judgment, the court concludes. The trial court’s reference to defendants in its final judgment refers to the remaining defendants in this case regardless of the fact that the nonsuited defendants remained in the style of the case. The appellants were the only remaining defendants at the time of the trial court’s judgment, and thus, the trial court’s judgment makes them and only them responsible for the fees, the court states. The court agrees with the appellants’ argument that the trial court erred by awarding interest in addition to what the arbitrator awarded and modifies the judgment accordingly. The appellants argue that the trial court erred in failing to enter findings of fact after a motion to vacate hearing. The hearing was held in the form of a summary judgment hearing; only arguments were given, no live testimony was given and the only evidence presented was not offered or admitted at the hearing but was attached to the parties’ motions. Because findings of fact have no place in summary judgment proceedings, the court overrules this issue. OPINION:Dauphinot, J.; Dauphinot, Holman and Walker, JJ.

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