*1 (TEXAS) HOLCIM LIMITED PART- Lim-

NERSHIP Holman Texas f/k/a Partnership, Appellant,

ited

v. WEDAG, INC., Appellee.

HUMBOLDT 10-05-00152-CV,

Nos. 10-05-00153-CV. Texas, Appeals

Court

Waco.

4,Oct. 2006.

Rehearing Dec. 2006. Overruled recently clearly federal law so an- were established members the Fifth Circuit Quarterman, though Penry II was until even not delivered nounced in in conclud- Nelson Penry Penry that the I and II tenets of *3 Rey Fulbright Rodriguez, O. & Jaworski LLP, Dallas, Hinds, Willett, Clay Hinds & Waxahachie, Klevorn, Elmer Andrew G. LLP, Solberg Chicago, Klevorn & Stahl IL, appellant. Jenkins, Jenkins,

Clay Lewis Jenkins & Waxahachie, Davis, Sheehy, Lovelace Rex PC, Waco, Mayfield Bidgood & K. James Eugene Heady, and Smith Currie & Han- LLP, Atlanta, GA, Dan- cock Theodore W. Dallas, iel, PC, Jenkins & Gilchrist appellee. GRAY,

Before Justice Justice Chief VANCE, and REYNA. Justice OPINION REYNA, FELIPE Justice. (Texas) fka Partnership Limited ap- Partnership Holman Texas Limited an petition the denial of its to vacate peals between Humboldt Wed- award (“HWI”) con- ag, Inc. and itself. Holcim issues that the court erred tends three (1) denying petition its because there HWI; denying petition its its exceeded because authority by awarding upon relief based to it and claims that not submitted were jurisdiction; beyond improperly modifying award. Because ex- find that no we HWI, will between Holcim and we ists reverse remand.

Background September In Holcim entered turnkey agreement with Watkins for production construction of a cement line at ed that the Arbitration Panel bifurcated factory in Midlothian. The turn- ad- proceedings phase with the first key required pro- Holcim and dressing the claims between fully functional production vide a line. addressing phase Watkins and the second Subsequently, agree- Watkins entered claims between Watkins HWI. ment with HWI as a subcontractor. This HWI filed a Statement of Claims and agreement required supply equip- HWI to Damages specified the amount project. ment for the damages sought from Watkins and as- turnkey agreement required Wat- first time a serted for the claim substantially complete project kins to alleged trapped Holcim for funds. HWI *4 by January production 2000. Because the required that Holcim to suffi- withhold substantially line was not completed sev- payment cient funds from its to Watkins to deadline, after eral months this Holcim satisfy HWI’s claims and that Holcim terminated the contract with Watkins. in fact asked withheld these funds HWI Pursuant to an arbitration clause the that the Arbitration Panel order Holcim to turnkey agreement, Holcim filed a claim directly to not pay these funds HWI and to with the American Arbitration Association that, through Watkins. HWI stated Watkins, against seeking repair costs and trapped aside from the claim to funds and liquidated damages. a Watkins filed lien, against the it had no other claims against counterclaim Holcim for breach of a Holcim. HWI never named Holcim as turnkey agreement the a third-party and defendant. against pursuant claim to an HWI arbitra- The Arbitration Panel entered order purchase agreement tion clause in a be- requiring proceedings bifurcated with the tween Watkins and HWI. phase addressing disputes first the be- claim against alleged Watkins’s de- HWI and the tween Holcim and Watkins second construction, sign, management and fail- Hol- phase addressing disputes among against ures. HWI counterclaimed Wat- cim, Watkins, and HWI. kins for breach of purchase agreement. At phase, the conclusion of the first counterclaim, In alleged HWI Arbitration Panel found that Watkins did because of Watkins’s failure to pay HWI substantially complete project not owning the amounts due and under the liqui- to that Holcim was entitled recover purchase agreement, had filed a lien damages totaling dated costs against property. Holcim’s $4,876,859. The Panel also found that The Arbitration Panel asked for Hol- turnkey agree- Watkins’s breach of the position joinder party cim’s on HWI’s as not material and that ment was Watkins objected to arbitration. Holcim was entitled to recover the contract bal- necessary not a HWI was for arbi- $7,560,730, damages, ance of less Holcim’s tration of the claims between Holcim and recovery leaving Watkins net Watkins. Holcim stated that its claim was $2,683,871. solely against Watkins for breach of its obligations, contractual and that Holcim then filed a motion to bar HWI’s Watkins’s to addressed in the desire to hold its subcontractor liable for claims which were be Holcim con- phase these deficiencies had little relevance to second of arbitration. denied against Holcim’s claim Watkins. tended that HWI’s claims should be (1) no agreed pursue Holcim to allow there was Watkins because: HWI, HWI, claim Holcim and against provid- its third severally jointly as a liable with Holcim was never named defendant answer, fee, opportunity retainage no to file an and had HWI for the contractual proper $4,931,539 a court of law is the forum which amounted to net particular decide whether The panel contract balance. found that subject panel subject claim is to arbitration. not this amount due to HWI was immediately respond did netting. set-off or objections, and in filed the interim Watkins award, panel its final Before the issued bankruptcy. naming in district court HWI filed suit later overruled Holcim’s ob- After Holcim and Watkins defendants. jections, finding jurisdiction, it had issued, moved final award against HWI’s claims Holcim. At decide to confirm the award. Hol- district court phase, the conclusion the second court nam- cim another suit district filed Holcim, new includ- raised claims as defendants. and Watkins and trust fund theo- ing breach requested that the court vacate the objected to the ries. introduction on Holcim and HWI award between objec- of these new claims and renewed its grounds that there was *5 panel’s jurisdiction tion to the to decide agreement. the lack an these issues because of The trial court heard both cases and between Holcim Holcim confirmed the arbitration award. HWI. interlocutory filed in both cases. appeal an panel After overruled Holcim’s objections, sought Holcim a temporary Interlocutory Appeal or Mandamus injunction

restraining order an an court because of the lack of district must first decide whether an We agreement between Holcim peti or mandamus interlocutory appeal a The court denied Holcim’s and HWI. for the appropriate tion is the vehicle relief motion. undisputed It that sought by Holcim. Panel then its final The issued award. (FAA) gov Arbitration Act the Federal that was liable to It concluded proceedings. parties’ erned the contract balance of HWI net procedural courts ‘When Texas confront $5,495,061. HWI panel The awarded FAA, subject to the involving a case issues $27,512 for its claims however, procedural apply rules in Texas a constructive trust the bene- imposed stead of federal rules.” J.D. Edwards $2,683,871 on Holcim owed fit of HWI Estes, Inc., Co. v. Solutions World panel directed Holcim Watkins. Worth (Tex.App.-Fort directly de- this amount to HWI and pay denied) Anglin B. pet. (citing Jack of such funds payment termined that (Tex. 266, 272 v. 842 S.W.2d Tipps, Co. extinguish debt to Wat- would 1992) (orig. proceeding)). con- panel also found

kins. 171.098(a) Civil Holcim and Section obligations tractual provides: and Remedies Code1 and that Holcim was Practice were extensive FAA, 2005). (Vernon Conversely, the governing Texas statutes arbitration of 171.098 1. The "any transaction applies to maritime disputes (commonly to as Texas referred Act) evidencing involv- Chapter a a transaction 171 of or Arbitration are found commerce,” title 9 of the is found in Remedies See the Civil Practice and Code. (West § 2 §§ See & Ann. United States Code. 9 U.S.C.A. Civ. Prac. Rem.Code 171.001- Tex. (a) three may judgment petition A a or not serve its on HWI within appeal chapter decree entered under this or an after the arbitration deliv- months Thus, order: HWI contends ered its award. uphold the trial court’s decision to (1) denying application an award should not be panel’s arbitration made Section disturbed. 171.021; (2) granting application stay an ar- responds is barred 171.023; made

bitration under Section appeal on be raising this contention (3) confirming denying or confirma- separate cause it did not file a notice of award; an tion of 25.1(c) (“A appeal. Tex.R.App. par P. See ty to alter the trial court’s who seeks award; modifying correcting or an must judgment appealable or other order or appeal.”). file a notice of be an vacating award without direct- jurisdictional presents cause HWI this as a ing rehearing. issue, may be raised for the first time on Tex. Civ. Prac. & Ann. Rem.Code appeal. See Univ. Tex. Sw. Med. Ctr. v. 171.098(a) (Vernon 2005). Thus, § (Tex. Loutzenhiser, 140 S.W.3d seeking review of an order that confirms 2004). Moreover, because does not an may denies arbitration award do so judgment, seek to alter the trial court’s interlocutory appeal. id. See req separate appeal notice of was not 171.098(a)(3); § J.D. Edwards World So- 25.1(c); P. Tex.R.App. See Ash uired.3 lutions, 91 839. Because Hol- Co., Hack Branch Distrib. 54 S.W.3d *6 cim is appealing confirming from an order denied). 2001, 409 n. 2 (Tex.App.-Waco pet. award, an arbitration by review interlocu- tory appeal is appropriate.2 12 FAA provides per- Section of the “[njotiee part tinent of a motion to

Timeliness of Petition to Vacate vacate, modify, or correct an award must argues upon be served the adverse or his both the trial jurisdic attorney court and this Court are without within three months after the tion to consider petition to vacate award is filed or delivered.” 9 U.S.C.A. 1999). (West § the arbitration award because Holcim did 12 that this HWI contends 1999). Therefore, challenging "The factors parties grant- that determine whether the (1) application stay preempts of an or the the FAA the TAAare arbitration whether the application (2) denial of an writing, is in it involves inter- FAA, proceedings governed by commerce, the manda- (3) scrutiny state it can withstand appropriate remedy. mus is the See In re J.D. defenses, (4) under traditional contract Co., 546, Edwards World Solutions 87 S.W.3d enforceability state law affects the of the (Tex.2002) (orig. proceeding); v. 551 Brooks Humble, agreement.” In re Nexion Health at Pep Boys Supercenters, Automotive 104 S.W.3d Inc., 67, (Tex.2005) (orig. pro- 173 S.W.3d 69 656, (Tex.App.-Houston 660-61 [1st Dist.] ceeding). 2003, pet.); no J.D. Edwards World Solutions Estes, Inc., 836, (Tex. Co. v. 91 S.W.3d 839 171.098(a) provisions 2. Some of section allow 2002, denied). App.-Fort pet. Worth interlocutory appeal governed for an in cases by either the FAA or the TAA.See Tex. Civ. least, theoiy seeking 3. at HWI should be In 171.098(a)(3), (4), § Prac. & Rem.Code Ann. vacating judgment an order the trial court’s (5). Conversely, permit subsections & dismissing Holcim’s claims for want of See, interlocutory appeal only proceedings an jurisdiction. e.g., Northglen Brooks v. 171.098(a)(1), (2). Ass’n, 158, (Tex.2004). governed by § the TAA.Id. 141 S.W.3d 172

802 the date jurisdictional requirement. generally accepted a Courts have is consistently panel’s 12 has as receives section been treated “delivery” mail juris- a statute of rather than a award in the as date of limitations See, v. e.g., of section 12. Smith prerequisite. purposes dictional Smith v. See (Tex. Co., 579, J-Hite, 837, 585 F.Supp.2d 841 333 127 S.W.3d Shell Chem. (M.D.La.2004); 2003, Eagle Inc. v. Dist. App.-Eastland pet.); Eurocapital Energy, Am., Co., Group, Ltd. v. Sachs & Mine Workers Goldman United Smüh, (S.D.W.Va.1998); (Tex.App.-Houston [1st 430-31 F.R.D. 2000, no also pet.); see Brown Dist.] 842. (5th Corp.,

Witco 340 F.3d n. 8 on petition Because Holcim served its Cir.2003). the date HWI within three months after panel The arbitration transmitted the its decision mailed parties facsimile on by award to March petition timely. the parties, Holcim’s was placed in the mail on March 2. Id. to vacate on petition

3. Holcim served its on June Stay Apply For a Holcim’s Failure crux of this issue whether next contends that is to be on award considered “delivered” an arbitra dispute cannot the existence of parties, it was the date faxed to the on apply it failed agreement because mail, placed date it was in the or on the for a under section 171.023 of stay mailed date the award was received. TAA. Tex. Civ. Prac. & Rem.Code See applicable of Rule of the version (Vernon 2005). §Ann. 171.023 Industry Arbitration Rules Construction 171.088(a)(4) that a court Section5 states American promulgated Arbitration if “shall award vacate” provides: Association arbitrate, the “there was no accept legal delivery Parties shall adversely issue determined placing the award the award or B, and the proceeding Subchapter *7 in mail copy true thereof the addressed party in the arbitration participate did not party representative to a or its at the objection.” hearing raising the without address, personal of last known service Ann. & Tex. Prac. Rem.Code Civ. award, filing the of the award the 2005). 171.088(a)(4) (Vernon § Section any permitted by other that is manner B) (which Subchapter is found 171.023 law. stay an arbitra- may court states that “[a] Ass’n, applica- on tion or threatened Am. Arbitration Constr. Indus. commenced (eff. not an there is showing tion a that Dispute Resolution Procedures R-46 (amended Prac. 2001), Jan., 1,1999) Tex. Civ. agreement www. to arbitrate.” http:// 171.023(a). § & Ann. adr.org/sp.asp?id=22184.4 Rem.Code 15, 2005), 2001, Sept. http://www.adr.org/sp.asp? July the American Arbitration 4. Since provided delivery id=22004). have Association’s rules by “personal or electronic service.” See Am. Ass’n, Dispute Constr. Indus. Arbitration re- as used hereinafter The term "section” (eff. 1, July R-48 Resolution Procedures Chapter the Civil of 171 of fers to a section 2001), http://www.adr.org/sp.aspPkN22180 TAA), (the unless Code Practice & Remedies Ass’n, (current version at Am. Arbitration indicated. otherwise Rules, (eff. R-46 Constr. Indus. Arbitration

803 171.088(a)(4) (Tex.App.-Houston on its face does not 244 [14th Dist.] Section denied). Rather, however, require stay. 2003, a a it pet. seek In that case that, if provides a chooses to file a Tanox the existence of the never denied stay application and the court that finds ar- arbitration and “demanded” arbitrate, is an agreement issue, there then bitration of the claims paily that cannot later the lack of an raise beyond scope later contended were of ground a to va- id., 105 agreement. See cate an arbitration award. S.W.3d at 267-68. authority have found no support

We however, commence- Here before the the proposition filing stay of a phase ment of the second of the arbitration application under section 171.023is a man proceedings, Holcim filed a motion to bar datory prerequisite to filing of mo consideration of HWI’s claims because of tion to vacate an arbitration award. HWI the lack an arbitration agreement of be- Healthcare, Regional cites Women’s P.A. participated them. Holcim tween Texas, v. FemPartners North Inc. process fifing after this written support position, of its “objection,” and the arbitration ulti- 2005, (Tex.App.-Houston [1st Dist.] rejected mately position Holcim’s on this pet.). that com! decided that issue. motion to vacate was without merit be party objects “[W]here arbitra- cause appellant objected had not to the bility voluntarily partici but nevertheless lack of an arbitration agreement during pates in the proceedings, waiv proceeding and not because challenge jurisdiction er of the to arbitral appellant stay appli failed to file a Kaplan will not be inferred.” v. First cation. See id. at 368-69. Options Chicago, 19 F.3d Prior phase to the second of the arbitra- (3rd Cir.1994), aff'd, U.S. proceedings, Holcim stated that HWI (1995); S.Ct. 131 L.Ed.2d 985 accord necessary party was not a under the turn- Turkmenistan, Bridas S.A.P.I.C. key agreement because Holcim’s contract (5th Cir.2003). F.3d Because Hol- was with Watkins alone. Holcim also filed initially objected arbitrability cim a motion to bar claims on the HWI’s basis participating claims before in the HWI’s there was no arbitration phase proceed second of the arbitration Thus, between Holcim and HWI. Holcim’s ings, estopped deny Holcim is not petition to vacate the arbitration award scope claims fie within the HWI’s not barred because of failure to turnkey agree arbitration clause in the stay seek a under section 171.023. *8 ment. Estoppel Equitable Estoppel next contends that Holcim is HWI that, also contends if it HWI even estopped deny to that HWI’s claims he party not a to agree was the arbitration scope within the of the arbitration clause Watkins, ment between Holcim and Hol- turnkey the because Holcim cim to the required arbitrate under sought against affirmative relief equitable of estoppel. doctrine the arbitration proceedings. Tanox, Akin, Gump, party signatory HWI cites Inc. v. “A that is not a to Strauss, Feld, Hauer L.L.P. support agreement may & an arbitration enforce the general its if estoppel argument. agreement’s provisions non-signato- 105 the 804 Homes, into un- Inc. v. 143

ry exception, recognized Alford, ‘falls an Woodhaven law, 2004, 202, general (Tex.App.-Dallas or contract that equitable der 205-06 S.W.3d McMillan, allow In re pet.); would such enforcement.’” see at also 66 S.W.3d Co., FSB, Lynch eq- Trust 123 Accordingly, Merrill S.W.3d we conclude 482-83. 549, 2003, (Tex.App.-San 554-55 Antonio estoppel preclude not uitable does Mohamed, orig. proceeding) (quoting re arbitrability In of objecting from to the 830, (Tex.App.-Houston [1st 89 S.W.3d 836 HWI’s claims. 2002, orig. proceeding)).

Dist.] Agreement Existence of Arbitration arbi non-signatory may compel A Between Holcim (1) tration in “the nature ways: two when seeking general, In sig underlying requires of the claims compel under the FAA must arbitration natory rely on the terms of the written (1) there arbi establish that: is a valid agreement containing pro agreement, tration the claims in asserting against vision claims agreement’s raised fall within nonsignatory”; signato “when the scope. regarding agree Doubts containing ry to the contract an arbitration of are in favor scope ment’s resolved substantially allegations clause raises there presump arbitration is a because interdependent and concerted misconduct agreements to arbitrate favoring nonsignatory and one or more both However, pre “the under FAA. In re signatories of the to the contract.” only sumption arises after McMillan, (Tex.App. 66 S.W.3d 482 seeking proves 2001, orig. proceeding). Dallas that a ex valid arbitration Watkins, argues signatory ists,” FAA purpose “the because Holcim, with as agreements was to make arbitration alleged involving interdependent claims contracts, more enforceable other not part and concerted misconduct on the so.” points both and HWI. HWI Root, & Kellogg In re Brown claim that Holcim Watkins’s breached (Tex.2005) (orig. pro- 737-38 turnkey agreement it excluded because (first ceeding) David- quotation J.M. with HWI Watkins its communications Webster, son, Inc. concerning changes resiz- design and the (second (Tex.2003)) Bridas quotation from equipment. ing and relocation of 4) (other S.A.P.I.C., F.3d at 354 n. estop- hold that equitable we omitted). FAA, prin- Under the citations there are two pel apply does because of state contract law determine ciples upon separate separate claims based two agreement to arbi- is a valid whether there dif- agreements, each of contained (citing Options Id. at trate. First provisions. In Wat- ferent at Chicago, U.S. S.Ct. Holcim, Wat- kins’s counterclaim 1924). alleges that Holcim breached kins inter clause is turnkey agreement between “An and its principles claim third-party preted Holcim. Watkins’s *9 according to its will enforced alleges language HWI be against HWI breached that would defeat agreement plain meaning between and unless purchase C.A.K., In re parties’ arise intent.” Watkins’s claims HWI HWI. 2004, pet. Antonio (Tex.App.-San solely purchase agreement under the denied). “If is so the written instrument turnkey agreement. See not under the Turnkey given pertinent provisions worded that it can be a certain or The legal Agreement reproduced definite are below: meaning interpretation, or ambiguous then it is not and the court will General Condition 15.01C construe the contract as a matter of law.” claims, All in disputes and other matters (Tex. Coker, Coker v. 650 S.W.2d question [Holcim] between OWNER 1983). “An ambiguity only exists if the arising [Watkins] DESIGN/BUILDER language susceptible is to two or relating out of or to the Contract Docu- interpretations.” more reasonable Am. ... ments or breach thereof will be Schaefer, Mut. Ins. Co. v. Mfrs. by binding arbitration. decided (Tex.2003). language in given plain gram a contract is to be General 15.01.E Condition meaning matical doing unless so would Except provided paragraph in 15.01.F parties’ defeat the County intent. DeWitt below, arising no arbitration out of or Parks, Coop., Elec. 1 S.W.3d relating to the Contract Documents shall (Tex.1999). presume par We that the consolidation, joinder include or in every ties intended clause to have an ef any any other manner other individual Res., NationsBank, Heritage fect. Inc. v. entity or is not a party who to this 118, 121 (Tex.1996). 939 S.W.2d contract unless: 1. of such other individ- inclusion only agreement entity necessary ual is if complete or which Holcim turnkey is a is the among relief is to be afforded those agreement between Holcim and Watkins. already parties who are to the arbitra- argues Holcim does tion, and permit compelled not arbitration between 2. entity such other individual or Holcim and one of Watkins’s subcontrac substantially question in involved tors. law fact to those or which is common already parties who are to the arbitra- responds provi- that consolidation pro- tion and which will arise in such in turnkey sions included ceedings, and turnkey show that the agreement and its arbitration clause were meant to include other the written consent of the all disputes claims and between entity sought or in- individual be argues Holcim. the contract cluded and of Owner and De- documents show that the planning, design- sign/builder has been obtained for ing, project inclusion, and construction of the was a shall such which consent joint undertaking concerted and between specific para- make reference to this parties, all provisions three and that the graph; but no such consent shall con- turnkey agreement negotiated were any stitute consent to arbitration of all three parties. between HWI refers to dispute specifically not described meetings minutes of between the three such consent to arbitration with parties and a letter of intent any specifically identified all parties included three as evidence such consent. turnkey that the apply was to General 15.01F. Condition parties.

to all three HWI also states that 15.01E, if a turnkey agreement Notwithstanding paragraph conditions recite claim, obligations ques- contractual dispute between HWI and or other matter DE- directly. OWNER *10 Although of a in involves the Work described such consent.” Hol- SIGN/BUILDER Subcontractor, Engineer ei- to to Supplier bring or cim consented allow Watkins join design/builder may or ther Owner proceedings, the arbitration HWI into entity as a the arbitration such to not consent to of claims did the arbitration here- design/builder between owner HWI and itself. in Design/builder include undeiv shall turnkey contemplates agreement The by paragraph required all subcontracts requires multiparty proceedings and Wat- whereby the specific provision 6.05.D provi- to include similar kins joined being consents to Subcontractor sions its contracts with subcontractors. in an arbitration between owner However, specifies turnkey agreement of design/builder involving the Work provi- the inclusion such of Nothing in this such Subcontractor. sions contracts with subcontractors does

paragraph provision 15.01.F nor in the claim, any right or not “create cause of join- consenting of such subcontract to Subcontractor, Supplier in favor of action claim, any cause right shall create or der Thus, against Engineer or Owner.” Subcontractor, Sup- action in favor of of provides turnkey agreement explicitly Engineer plier against Owner. provision in Watkins’s con- 15.0(2) Condition not confer additional Supplementary tract with does against rights [Hol- “in favor of [HWI] Multiparty Proceeding. parties The cim].” re- agree parties necessary that all parties a claim shall be to the same solve Holcim relies on the Fifth Circuit’s deci- ' proceeding. or arbitration mediation E. in Del Webb Construction Rich- sion appropriate shall Design/builder include support Hospital Authority ardson contracts provisions similar in all other not arbitra- compel claim that HWI could relating and subcontracts to Work tion of its claims disputes for arbitration of provide with Holcim’s arbitration Wat- with the of Exhibit provision accordance (5th Cir.1987), F.2d 145 over- kins. 823 and consolidation of arbitration. GC-A Tree grounds by on other Green Fin. ruled turnkey agreement allow the does Bazzle, 444, 452-53, 123 Corp. v. 539 U.S. necessary of

consolidation claims between 2402, 2407, 156 L.Ed.2d S.Ct. However, parties and subcontractors. Mgmt. Pedcor (plurality opinion); see also subsequent- consolidation does not right of Co., Inc. Plan v. Nations Welfare Benefit sub- right non-signatory ly confer Tex., F.3d Personnel of Holcim into compel like HWI to contractor Cir.2003).6 (5th plain language of arbitration. Construction, an E. owner In Del Webb joinder a third allows the a contractor and a with when consent is obtained into arbitration an architect. agreement with Holcim, separate party, the third Watkins. contained at 146-47. Both contracts “no F.2d states that arbitration clauses. joinder provisions shall constitute consent such consent arbi- attempted specifically The contractor any dispute par- whether the arbitrator should determine explained in Pedcor Man- 6. The Fifth Circuit separate agreed arbi- have to consolidate Supreme plurali- Court’s ties agement Co. Co., Mgt. proceedings. "ef- Inc. tration Corp. See Pedcor ty opinion in Green Tree Financial holding Personnel fectively Del E. Plan v. Nations overruled” the Benefit Welfare (5th Cir.2003). Tex., Inc., than an F.3d that a court rather Webb Construction *11 itself, parties all involved. among tration the architect and joinder in the of this nature there relying provisions projects on the construction and the con- obligations negotia- contract between owner and will be numerous tractor. Id. among everyone involved in flowing tions dealings and relation- project. These The Fifth held that the contrac- Circuit ships give do not in and of themselves rise tor compel could not arbitration with the necessarily arbitrate or to an architect because there was no arbitration relationship. a contractual imply agreement between them. agree that could [the architect] We Supreme has ex- As the Texas Court compelled not be to arbitrate under the plained: Owner-Contractor contract. But [the performed The work to be under a sec- compel could contractor] [owner] inherently will be ond-tier subcontract arbitrate under the arbitration clause extent, and, related to to a certain de- contract, the Owner-Contractor and the in the chain. higher fined contracts compel could [owner] [the architect] binding If this were a sufficient basis for arbitrate arbitration clause n subcontractor, non-signatory arbitra- the Owner-Architect contract. Never- agreements would become easier to theless, arbitration of [the architect’s] contracts, enforce than other counter to against counterclaim the contractor was purpose. the FAA’s improper. con- [The architect] [the agreed have not tractor] arbitrate Root, Kellogg Brown & 166 S.W.3d at 740 disputes between them. (citation omitted). Undoubtedly, the district court was plain language turnkey concerned, we, as are potential about the agreement evidences the intent of Holcim piecemeal litigation. But as the Su- to arbitrate with Watkins but does not preme explained Court in Dean Witter right confer on arbitra-

Reynolds v. Byrd, 470 U.S. tion of claims Holcim. Accord- 1238, 1242-43, S.Ct. 84 L.Ed.2d 158 ingly, there is no arbitration (1985): Therefore, Holcim. between HWI and we preeminent concern of Congress sustain Holcim’s first issue. in passing [Federal Arbitration] Because we have sustained Holcim’s Act private agreements was to enforce issue, first we need not address the re- entered, into parties mainder of its issues. We reverse the requires rigor- concern that we judgment and remand this cause for fur- ously arbitrate, agreements enforce opin- ther consistent with this proceedings even if the “piecemeal” litiga- result is ion. tion, at least countervailing absent a

policy manifested another federal

statute. GRAY, concurring Chief Justice dissenting. Id. at 148. distinguishes E. Del Webb Con- GRAY, Justice, concurring TOM Chief struction on the basis of HWT’s assertion dissenting. separate agreements there are not

here, tripartite but a separately, briefly contractual relation- I write but so as not HWI, ship among Watkins, pur- delay appeal, and Holcim to further for the obligations pose which cause contractual of this explaining portion to flow *12 subcontractor, I dissent.1 determined to owe the judgment Court’s panel’s HWI, of Part of the result for the and services equipment same in the between WEC WEC, decision arbitration had party, that the common been HWI, phase II was a deter- part, to be payment determined due Hol- by money being mination that held cim. WEC, Holcim and owed as determined Thus, payment of a direct order arbitration, I of the should be phase equipment from Holcim to for that by and that paid directly Holcim to HWI is of and services not the result extinguish payment would Holcim’s liabili- Holcim and and should not between ty portion of I award to phase for that appeal. be interfered with this To the

WEC. described, I from this extent dissent decision, of the portion This otherwise, join judgment, but Court’s court, trial by the does not seem confirmed thereof. result by implicated to be the lack of an arbitra- between Holcim HWI.2 Further, precisely type it seems to be type

of determination which this under

multi-party proceeding, disputes, arising under dif-

which different contracts, requiring par- different

ferent all disputes, but

ties to arbitrate those de- arbitrated within one proceeding, WEBB, Appellant, Jason signed. clearly sepa- simply This is the result of being arbi- rating disputes which were Texas, Appellee. DALLAS, OF CITY pro- trated under two different arbitration No. 05-05-01621-CV. contracts,

visions, between in two different avoiding incon- parties, different but also Texas, of Appeals Court by one arbitration having sistent results Dallas. single proceeding. conduct a party, common two arbitrations one Nov. 2006. was deter- dispute, In one

WEC. Rehearing Jan. 2007. Overruled WEC, party, that common mined to owe and services equipment funds for certain provided by a subcontrac-

which had been be- proceeding,

tor. In the same overall arbitrators, same but

fore the provision in a differ-

different WEC, contract, party, the common

ent Likewise, sweep- order confirmed fairly the confirmation broad 1. There are a number of holdings phrases parts or stated as decision for the statements other arbitrator’s inadequate authority. have I which I find and WEC and proceedings between Holcim to ad- them nor written herein not identified proceeding parts other of the arbitration also I determined because have also dress them were at- WEC HWI that unsupported erroneous state- these appeal remain undis- tacked on and should this disposition ments are immaterial judgment. turbed Court’s appeal.