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

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[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.