Holcim (Texas) Limited Partnership F/K/A Holnam Texas Limited Partnership v. Humboldt Wedag, Inc. and Watkins Engineers & Constructors, Inc. ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00152-CV

[Consolidated on Appeal With]

No. 10-05-00153-CV

Holcim (Texas) Limited Partnership

f/k/a Holnam Texas Limited Partnership,

                                                                      Appellant

 v.

Humboldt Wedag, Inc. and Watkins

Engineers & Constructors, Inc.,

                                                                      Appellees

From the 40th District Court

Ellis County, Texas

Trial Court Nos. 65034 and 67978

CONCURRING AND DISSENTING Opinion

          I write separately, but briefly so as not to further delay this appeal, for the purpose of explaining the portion of this Court’s judgment to which I dissent.[1] Part of the result of the arbitration panel’s decision in the arbitration between WEC and HWI, the phase II part, was a determination that the money being held by Holcim and owed to WEC, as determined in phase I of the arbitration, should be paid directly by Holcim to HWI and that payment would extinguish Holcim’s liability for that portion of the phase I award to WEC.

          This portion of the arbitration decision, confirmed by the trial court, does not seem to be implicated by the lack of an arbitration agreement between Holcim and HWI.[2] Further, it seems to be precisely the type of determination for which this type of multi-party arbitration proceeding, under which different disputes, arising under different contracts, requiring different parties to arbitrate those disputes, but all arbitrated within one proceeding, is designed.

          This is simply the result of clearly separating the disputes which were being arbitrated under two different arbitration provisions, in two different contracts, between different parties, but also avoiding inconsistent results by having one arbitration panel conduct a single proceeding.  The two arbitrations had one common party, WEC.  In one dispute, Holcim was determined to owe that common party, WEC, funds for certain equipment and services which had been provided by a subcontractor.  In the same overall proceeding, before the same arbitrators, but under a different arbitration provision in a different contract, the common party, WEC, was determined to owe the subcontractor, HWI, for the same equipment and services that the common party, WEC, had been determined to be due payment from Holcim.

          Thus, the order of a direct payment from Holcim to HWI for that equipment and services is not the result of arbitration between Holcim and HWI and should not be interfered with in this appeal.  To the extent described, I dissent from this Court’s judgment, but otherwise, join the result thereof.

                                                          TOM GRAY

                                                          Chief Justice

Concurring and dissenting opinion delivered and filed October 4, 2006

---

[1]  There are a number of fairly broad sweeping statements or phrases stated as holdings for which I find inadequate authority.  I have not identified them nor written herein to address them because I have also determined that these unsupported or erroneous statements are immaterial to the disposition of this appeal.

[2] Likewise, the confirmation order confirmed other parts of the arbitrator’s decision for the proceedings between Holcim and WEC and also other parts of the arbitration proceeding between WEC and HWI that were not attacked on appeal and should remain undisturbed by this Court’s judgment.

hedules and provide those schedules to the trial court in an effort to assist the trial court with a determination of a date certain that her portion of the reporter’s record will be filed.  The parties’ counsel shall also make the trial court aware of any actual or potential prejudices to the parties by the lateness of this reporter’s record.

            The trial court must order Susan Rainwater to file the record by the date determined.  Further, the trial court must inform Susan Rainwater of the consequences of failing to file the record by the date determined and ordered.  Those consequences include:

            (1)        abating the proceeding again to the trial court for a contempt of court                                 hearing;

            (2)        imposing a lump sum monetary fine;

            (3)        imposing a daily fine for each day the record is late beyond the date                                   previously determined by the trial court; and

            (4) confinement in jail until the record is completed.

            The trial court shall require the hearing to be transcribed.  To the extent necessary or pertinent to obtaining compliance with the rules regarding preparation of the reporter’s record, the trial court must: (1) prepare findings of fact and conclusions of law addressing the above issues; (2) require the preparation of a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in the matter; and (3) require the preparation of a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing.  Additionally, the trial court’s findings and orders must be provided to the trial court clerk within 7 days from the date of the hearing. 

            The trial court clerk is ORDERED to provide a supplemental clerk’s record, containing the written findings and orders of the trial court, to this Court within 14 days from the date of the hearing. 

            Further, the trial court’s official reporter is ORDERED to provide a record of the hearing held to this Court within 14 days from the date of the hearing.

                                                                        PER CURIAM          

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed December 15, 2010

Publish