In confirming an arbitration award but reversing the judgment of a trial court in part, a Texas appellate court held that a trial court cannot award back pay to an employee in a confirmation proceeding where the award does not mention back pay and neither party seeks modification or clarification of the award.

In Garza/Phelps Dodge Refining Corp. v. Phelps Dodge Refining Corp./Garza, No. 08-07 00079-CV, 2008 WL 3870102 (Tex. App. Aug. 21, 2008), Phelps Dodge fired Garza. Pursuant to an arbitration agreement, the parties went to arbitration, and the arbitrator determined that Phelps Dodge did not have good cause to fire Garza, but there was good cause to issue a leave without pay for thirty days. Phelps Dodge then reinstated Garza to his previous position.

Garza moved to confirm the award, and asserted that the trial court should award him his lost wages less thirty days unpaid leave. The trial court confirmed the award and also awarded Garza back pay, which was offset by Garza's replacement earnings. Garza appealed, arguing that the back pay award should not have been offset because the arbitrator's award did not mention any offset. Phelps Dodge cross-appealed, arguing that the trial court erred in awarding Garza any back pay because the award did not direct the payment of back pay.

On appeal, the Court held that the arbitrator's award made no mention of back pay, and "[a]lthough one might infer that an award of back pay, after the initial thirty-day leave, was implied in the arbitrator's Award, his opinion does not expressly address the issue." As a result, the Court held that "Garza's motion was for more than simple confirmation of the award. Garza's request necessarily required the trial court to attempt to divine the arbitrator's intent . . . It is not the role of the courts to determine an arbitrator's intent, when his intent is not apparent on the face of the award."

The Court then noted that neither party had sought modification, correction, or clarification of the award from the arbitrator, so Garza essentially had sought modification of the award from the trial court in his motion to confirm. However, the Court held that because Garza's motion was not brought within ninety days as required by statute for a motion to modify, the trial court was without authority to consider whether back pay should have been awarded.

Consequently, the Court reversed the judgment of the trial court to the extent that it awarded Garza back pay, and confirmed the arbitration award "as written."