Can You Appeal An Arbitration That Was Not Recorded ?

In Jamison & Harris v. National Loan Investors, 939 S.W.2d 735, 737 (Tex. App.--Houston [14th Dist.] 1997, writ denied), the appellant produced no record of the arbitration hearing in which he claimed the arbitrator refused to hear evidence and relied on improper procedure. 939 S.W.2d at 737. The appellee claimed the appellant had waived these challenges by not providing a record of the arbitration proceedings. Id. The Jamison court agreed, holding that, because it could not determine what evidence the arbitrator refused to hear or what was offered before him without a recording of the arbitration hearing, it would presume adequate evidence supported the award. Id. Jamison is instructive because the court refused to review a challenge to the arbitrator's evidentiary rulings without an arbitration record. See id.; see also Anzilotti, 899 S.W.2d at 267 ("In this case, there was no statement of facts for us to review from either the arbitration or the trial court. The arbitration was not recorded. Similarly, the record indicates that the trial court heard oral argument . . . but does not indicate that any evidence or testimony was presented. Without a record, we are to presume adequate evidence was presented to support the arbitrator's award. We are also unable to review the evidence to determine whether the arbitrator made 'a mistake which implies bad faith or failure to exercise honest judgment.' The burden is on Anzilotti to demonstrate how the arbitrator made a 'gross mistake.' He has not met this burden. The record before this court does not include any evidence of the arbitrator's 'gross mistake.'") (citations omitted); Grissom, 676 S.W.2d at 711-12 (holding appellee did not carry burden of showing arbitrator partiality and prejudicial arbitration procedure because "no transcript of either the arbitration hearing or the hearing before the lower court" appeared in appellate record). The grounds for vacating an arbitration award for fraud or arbitrator misconduct contemplate that proof may be made by "extrinsic" evidence in addition to the arbitration transcription. Cf. Shulte v. Hoffman, 18 Tex. 678 (Tex. 1857) (holding evidence of arbitrators' partiality or gross mistake must be proved by more than a party's own affidavit); Anzilotti, 899 S.W.2d at 267; Grissom, 676 S.W.2d at 711-12; Obst, 659 S.W.2d at 906.