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Civil Litigation No. 02-02-293-CV, 4/10/2003. Click here for the full text of this decision FACTS: This appeal is from a judgment confirming an arbitration award settling disputes between two construction contractors and an intervening corporate surety. The appellant, Hisaw & Associates General Contractors Inc., contends the trial court erred in two respects: 1. it lacked the requisite jurisdiction to enter the judgment; and 2. the trial court abused its discretion in granting the appellee, Mapfre Reinsurance Corp. f/k/a Chatham Reinsurance Corp.’s plea in intervention. Hisaw asks this court to vacate the trial court’s judgment and dismiss the case. In 1997, Hisaw and Cornerstone Concrete Systems Inc. entered into a subcontract under which Cornerstone was to provide goods and services to Hisaw in conjunction with Hisaw’s construction of an elementary school. The subcontract included a dispute arbitration clause. During the course of the project, conflicts arose, leading each party to contend that the other breached the subcontract. Chatham is a company providing surety bonds for contractors, including surety bonds for construction projects undertaken by Cornerstone. On March 27, 1998, Cornerstone made a written assignment to Chatham of its rights to any and all funds received pursuant to the subcontract at issue and to any claims and rights of action accrued or to be accrued as a result of the project. In 1999, Cornerstone filed suit against Hisaw for breach of contract. Cornerstone noted in its petition that the parties were involved in arbitration through the American Arbitration Association. Hisaw subsequently filed a counter-claim alleging breach of contract, fraud, negligence and breach of warranty. The parties agreed to an order of abatement, allowing the previously filed arbitration to proceed. On Oct. 9, 2001, Hisaw filed a plea in abatement before the trial court and the arbitration panel, asking to abate the arbitration on the ground that Cornerstone no longer had a justiciable interest because of its assignment of rights against Hisaw to Chatham. The arbitrators denied the plea and commenced the arbitration. On Nov. 13, 2001, the arbitration panel issued an award in favor of Cornerstone and modified the award on Dec. 26, 2001. Between the time of the original award and the modification, Hisaw filed a motion in the trial court requesting that it vacate the arbitration award and grant it summary judgment because Cornerstone lacked a justiciable interest in the controversy. On Feb. 25, 2002, Cornerstone requested that the trial court confirm the arbitration award. On March 1, 2002, Chatham moved for leave to file its plea in intervention. Hisaw opposed Chatham’s intervention and confirmation of the arbitrators’ award. Ultimately, however, the trial court rendered a final judgment granting Chatham leave to intervene and confirming the arbitrators’ award plus post-judgment interest in favor of Cornerstone and Chatham. HOLDING: Affirmed. The decision in Island on Lake Travis Ltd. v. Hayman Co. Gen. Contractors Inc.,834 S.W.2d 529 (Tex. App. – Austin 1992, writ granted, judgm’t vacated w.r.m.), is instructive. In Hayman, as here, the appellee assigned its rights in a construction contract to a third party. The contract included a similarly broad arbitration clause. When a dispute arose and the appellee initiated arbitration proceedings against the appellant, the appellant expressly submitted the assignment/ownership of claims issue to the arbitrators, complaining that the assignee, not the appellee, was the real party in interest and, therefore, the appellee had no standing to bring claims under the contract. The Austin Court of Appeals rejected that argument and held that under a broad arbitration clause, “a dispute between the parties to the contract concerning the ownership of a claim arising from the contract is just as arbitrable as a dispute concerning the merits of the claim itself.” The court finds the Austin court’s logic persuasive. The parties do not dispute that they agreed to arbitrate. The court holds that the arbitration clause gave the arbitration panel the power to make the determination as to whether Cornerstone, as opposed to Chatham, was the properly named party, and that the trial court correctly confirmed the arbitration panel’s award. Hisaw contends that the trial court erred in allowing Chatham to intervene in the lawsuit after the arbitration. A party has the right to intervene if it could have brought the same action, or any part thereof, on its own. Texas Rule of Civil Procedure 60. An intervention is proper at any time before a final judgment on the merits issues. Citizens State Bank v. Caney Invs., 746 S.W.2d 477 (Tex. 1988). Hisaw contends that the final decision on the merits in this case came on Dec. 26, 2001, the day the arbitrators issued their modified award. For an order or judgment to be final it must dispose of every pending claim and party or clearly and unequivocally state that it finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). The court does not agree with Hisaw’s contention that the Dec. 26, 2001, arbitration award constituted a “final judgment.” The Dec. 26 award preceded the trial court’s confirmation order and therefore did not finally dispose of all claims and all parties. Compare Buffalo Royalty Corp. v. Enron Corp.,906 S.W.2d 275 (Tex. App. – Amarillo 1995, no pet.). Instead, it was the trial court’s May 23, 2002 final judgment confirming the arbitration panel’s award that disposed of all parties and issues. Chatham intervened two and one-half months before that date. The court concludes the trial court acted within its discretion in permitting Chatham to intervene prior to the entry of final judgment. OPINION: Per curiam; Richards, Day and Livingston, JJ.

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