COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

I N RE: CHEVRON U.S.A., I NC.

Relator. § § § § § § No. 08-08-00084- CV

AN ORI GI

NAL PROCEEDI

NG I N MANDA MUS

OP INION ON P ETIT ION F OR WRIT OF M ANDAM US Chevron U.S.A.,I nc. (CUSA), seeks a writ of mandamus ag ainst the Honora ble Bob Parks, J udg e of the 143rd District Court of Reeve s County , Texas, to compel him to confirm two arbitra tion

awa rds. CUSA has also filed notice of appea l from an order which it contends eff ectively denies its motion to confirm the arbitra tion awa rds. We conditionally g rant mandamus relief and dismiss the interlocutory

appea l for wa

nt of jurisdiction. F ACTUAL SUMMA RY This a ppeal and mandamus proce eding arise out of the Relators’ motion to confirm cer tain arbitra tion awa

rds and the Real Parties in I ntere st’s motion to vacate those awa rds. The Real Parties in I ntere st are the co-truste es of the Texas Pacific L and Trust, J ames K. Norwood, Maurice Mey er, I I I , and J ohn R. Norris (collec tively ref err ed to as TPL T). TPL T filed a suit ag ainst CUSA for damag es re lated to TPL T’s non-pa rticipating roy alty

interests. I n the late 1800’s, TPL T was g iven sever al milli on surfa ce acr es by the Texas L eg islature in exch an ge fo r constructing the Trans- Texas Railroad. I n 1954, TPL T obtained a decla ratory judgme nt in a Texas district court authorizing it to cre ate a s u b s i d iary company , TXL OilCorporation, for the purpose of convey ing to that company all of TPL T’s m i n er al i n tere sts. On Dec ember 10, 1954, TPL T convey ed to TXL all o f i t s m inera l interests underly ing its 2 milli on surfa ce acr es. Under this convey ance , TXL rese rved all of its surfa ce acr es as well as a nonparticipa ting roy alty interest in those lands under an oil and g as lease to third parties. I n 1962, TXL sold all of the m inera l interests t o Texaco, I nc., and Texaco, I nc. conve y ed these mineral intere sts to Texaco Expl oration and Produc tion, I nc. (TE PI ) in 1991. Texaco, I nc. and/or TEPI owned and opera ted the mineral interests until 2002 when they wer e acquir ed by Chevron U.S.A. in the merg er betwee n Chevron Corpora tion and Texaco, I nc. The 1954 c onvey ance contains an a rbitration clause which provide s: All claims, demands, disputes, differ ence s and controve rsies betwee n Assignor s and Assigne e arising out of or conce rning the terms and provisions of this instrument or the rig hts, duties and obliga tions of the part i es h ere to shall be submitt ed to and be deter mined and settled by arbitra tion in the following manner : Assign ors and Assigne e shall ea ch select an arbitrator withi n 10 day s after demand f

or ar bitration h as been g iven by one party to the other. The two arbitra tors shall selec t a t h i rd arbitra tor within 10 day s there afte r and the three so appoin t ed shall constitute the board of arbitra tors. Said boa rd of arbitra tors shall meet and shall g ive opportunity to eac h party

here to to present his case and witnesses, if any , in the prese nce of the other, and shall then make its awa rd in writing

. The awa

rd o f a m aj o ri ty of the arbitra tors shall b e b inding upon the parties here to and judgme nt may be enter ed there on in a

ny court having jurisdiction. Such awa rd shall include the fix ing of the expense of the arbitra tion and assessment of the same ag ainst either or both parties. On Marc h 12, 2004, TPL T and CUSA ag ree d to add ce rtain cla ims made by TPL T ag ainst CUSA to an ong oing arbitra tion. The added claims included those which perta ined to the following proper ties: Glasscoc k “L ” Calver ly

(Glassc ock County) Midland “AW” F ee Well No. 1/TXL “N” 5-1 Well (Midland County ) Glasscoc k “P” F ee ( Glasscoc k County ) Over the course of the next four y ear s, the parties proce eded to arbitra te TPL T ’s claimsag ainst CUSA before an ar bitration panel c omprised of the Honorable J ames R. Mey ers (a retired district judge ), L aura Bur

ney (an attorney and oil and g as profe ssor), and Eliz abeth Miller (an oil and g as trial attorney

). Be tween November 8, 2005 and November 27, 2007, the arbitra tion panel issued
ten arbitra tion order s. Orde r Nos. 1 throu gh 8 wer e issued prior to the evidentiar y hear ing which took place on May 14, 2007 throug h May 24, 2007. This mandamus proceeding concer n s t wo o f those order s: Arbitration Orde r No. 4 issued on Aug ust 30, 2006 and Arbitration Orde r No. 9 issued on J uly 9, 2007. I n Arbitration Orde r No. 4, the arbitra tion panel addre ssed two motions for summary judgme nt and a reque st for decla ratory judgme nt filed by CUSA. Among other things, the arbitra tion panel deter

mine d t h at the 1954 convey ance cre ated duties requiring TXL and its succe ssors to develop and protec t TPL T’s non-pa rticipating roy alty

interests, but it found that the duties did not rise to the level of fiduciar y duties. The arbitra tion panel also decla red in this order that the four y ear statute of limit ations applied to TPL T’s claims for brea ch of the duty to develop and protec t TPL T’s non-par ticipating roy alty interests such that TPL T’s claims wer e limit ed to those occur ring in the four- y ear -per iod prior to the filing of the suit. Arbitration Orde r No. 9 rela tes to sever al proper ties, including the Glasscoc k “L ” Calverly , Midland “AW” Fe e Well No. 1/TXL “N” 5-1 Well, and Glassc o ck “P ” Fee. I n this order , the arbitra tion panel reiter ated its ear lier ruling that the 1954 convey ance imposed o n T XL and its prede cessor s the duty to protec t and develop the acr eag e b u rd ened by TPL T’s non-par ticipating roy alty interests as a rea sonably prudent ope rator w ould under the sa me or simil ar circ umstances. The panel also held that the 1954 convey ance did not cre ate a separ ate duty of utmost g ood faith and fair dealing , a duty to “equa lly develop” the burdene d and unburdene d acr eag e, or a duty to pay compensa tory

roy alty

.Wit h respe ct to the Glasscoc k “L ” Calverly proper ty , the panel stated TPL T had made a claim for bad faith pooling. TPL T arg ued that no unit should have been formed for the “L “ Fe e Calverly Unit Well No. 1 and the well should have instead been drilled further south or a Rule 37 permit should have been obtained for the well at its actua l location. T h e p an el n oted that TPL T had not prese nted any evidenc e as to what would have been required to obtain a Rule 37 exception or whether the Railroad Commi ssion would have approve d such an application. After considering the evidenc e, the pa

nel conc luded that the evide nce did not establish that the pooling was done in bad faith and TPL T had failed to establish that a rea sonably prudent opera tor would not have formed the unit. The panel additionally found that such a claim was barr ed by the statute of limit ations beca use the unit had been formed in 1993 and TPL T had been acc epting roy alty pay ments on a unitiz ed basis since that time. Wit h reg ard to the Midland “AW” Fe e, the panel char acte rized it as a failure to develop claim based on an alleg ation that a rea sonably prudent opera tor would have drilled at t h e p roposed location. The pa

nel stated the a

pplicable r

ule is that a reasonably prudent operator is not require d
t o d ri l l a d evelopment well in the absenc e of a rea sonable expectation of profit. I t found that th e estimates of production from the proposed location are too specula tive for the panel to conclude that

a rea sonably prudent opera tor would have drilled a well at that location, and there fore , TPL T failed to meet its burden of pr oof. The panel also addre ssed the Glasscoc k “P” Fe e in this order

. I t noted that TPL T fra med the issue as a failure to pool or “equa lly develop” but the panel held that it is a failure to protec t claim. The panel found aga inst TPL T on this claim because it failed to p rove substantial draina g e which is an eleme nt of the cla im. On October 17 , 200 7 , C USA filed an application in the district court to confirm thearbitra tion awa rds and the court set it for hear ing on Dec ember 14, 2007. I n that application, CUSA 1 relied on the arbitra

tion ag ree ment dated Marc h 12, 2004. On November 7, 2007, TPL T responde d with a motion to vacate t he arbitration awa rds al l egi ng “evide nt partiality ” on the part of Mi ller. The arbitra tion panel, with Miller not partici p ating , enter ed Arbitration Orde r No. 10 on November 27, 2007 sever ing “[t] he proper ties addre ssed in Arbitration Orde rs 4, 8, and 9

. . . from
t h e rema ining proper

ties.” The arbitra tion panel’ s order also sever ed the issue of attorney ’s fee s which had not be en addr essed. On or ab o u t No v em b er 30, 2007, TPL T filed a reque st for production of documents from Miller’s law firm. CUSA responded b y fi l i n g a motion to quash/motion for protec tive order

asser ting that TPL T’s motion to vacate the arbitra tion awa rds was untimely beca

use it was filed more than three months afte r the i s s uance of Arbitration Orde r No. 9. TPL T soug ht to continue the hear ing on CUSA’s motion to confirm so it could conduct discovery on Miller’s law firm. The trial court conducted the hear ing scheduled for Decembe r 14, 2007 and entered an order on J anuary 8, 2008 g ranting the motion for continuance

. The court also denied the motion to quash and for protec tive order

. Alleg ing that the trial court eff ectively denied its motion to c onfirm the arbitra tion awa rds, CUSA filed a petition seeking mandamus relief. At the s ame tim e, C USA filed not ice of appea l. See T E X .C I V .P R A C .&R E M .C O D E AN N . § 171.098(a) (3)( Ver non 2005 ). We consolidated the mandamus proce eding and the interlocutory appea l for purp o s es o f briefing , oral arg ument, and decision. See In re Valero Ene rgy C orporation , 968 S.W .2d 916, 916-17 (Tex

. 1998)(instructing that when a court of appea ls is confr onted with an interlocutory appea l and a mandamus proce eding

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.seeking to compel arbitra tion would be to consolidate the tw o p ro ce ed i ng s and rende r a decision

disposing of both simult aneously , there by conser ving judicial resour ces and the resour ces of the parties)

. INTERLOCUTO RY AP P ELL ATE REVIEW IS UNAVA ILABLE As a preliminary matter, we must deter mine whether the trial court’s ruling s are revie wable in an interlocutory appea l under the Texas Gene ral Arbit ra t i o n Ac t (TGAA). I f they are not, mandamus revie w is available provided CUSA meets the well established mandamus standard. See In re Poly- A me r i ca , L.P. , 262 S.W .3d 337, 345 (Tex. 2008)(or ig. proce eding ). The Fe dera l Arbitration Act (F AA) permits a party to appea l from an order confirming or deny ing confirma tion of an arbitra tion awa

rd. 9 U.S.C.A. § 16(a) (1)( D)(West 2009). But fede ral proce dure does not apply in Texas courts, even when Texas courts apply the FAA

. See Jack B. Anglin Company v. Tipps , 842 S.W .2d 266, 272 (Tex. 1992). Consequently , appellate revie w is unavailable to CUSA under the FAA

. Section 171.098(a) (3) of the TGAA authorizes an appea l from an order confirming or deny ing confirma tion of an arbitra l awa rd. T E X .C I V .P R A C .&R E M .C O D E A N N . § 171.098(a) (3). Be cause the orig inal arbitra tion ag ree ment was enter ed prior to J anuar y 1, 1966, the TGAA is inapplicable to it. T E X .C I V .P R A C .&R E M .C O D E AN N . § 171.002(a) (5)( TGAA does not apply to arbitra tion ag ree ments made befor e J anuar

y 1, 1966). This case , howeve r, is not based on the 1954 arbitra tion ag ree ment but is inst ead based on arbitra tion ag ree ment made by the par ties on Marc h 12, 2004. The TGA A d o es not authorize an interlocutory appea l from order s g ranting a continuance or per m i t t i n g discovery

. See Universal Computer Systems, Inc. v. Dealer Solutions, L.L.C

. , No. 01-02-00219- CV, 2002 WL 3 1030747 (Tex.App.--Houston [1st Dist.] 2002, no pet.)(inter locutory order g ranting plaintiffs’ motion to compel arbitra tion in part and deny ing it in part, but delay ing entry until resolution of discovery issues and ruling on objections to specia l mas t er ’s decision, was notappea lable; rea ding the order as a whole, the appellate court d et er m i n ed that the court was not

deny ing the motion to compel arbitra tion, but mere ly delay ing the g ranting of it until cer tain conditions had occur

red)

. Be cause there is no basis for appellate jurisdiction under either the TGAA

or the FAA , we have dismiss ed the interlocutory appea l for want of jurisdiction in a separ ate opinion and judg ment issued this same date. 2 THE I SSUE S Alleg ing that Arbitration Orde rs Nos. 4 and 9 are final for purposes of confirma tion and that TPL T failed to timely file its motion to vacate, CUSA asser ts that the trial court abused its discretion by failing to summarily confirm the confirma tion awa rds. TPL T contends that Arbitration Orde rs Nos. 4 and 9 did not become final u n t i l the arbitra tion panel enter ed the sever ance order , and there fore , it tim ely

filed the motion to vaca te on the g round of e vident partiality

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.STANDARD OF REVIEW

To be entitled to ma

ndamus relief

, a re lator must meet two re quirements. F irst, the rela tor must show that the trial court clea rly abused its discretion. In re Prudential Insurance Company of America , 148 S.W .3d 124, 135 (Tex. 2004). Second, the rela tor must demonstrate it has no adequate

reme dy by appea l. Id. at 136. P REEMP TION BY TH E FA A Gene rally speaking , the FAA and the TGAA are not mutually exclusive. See In re D. W ilson Construction Company , 196 S.W .3d 774, 779 (Tex. 2006). The FAA does not pree mpt consonant state law, only co ntrary state law. Id. Preemption occur s wher e application of state law would undermine the g oals and policies of the FAA

. Id. The Texas Supreme Court has articula ted a fourfac tor test to deter

mine whether the FAA pree mpts the TGAA in a particula r case : (1) the ag ree ment is in writing ; (2) it involves interstate commerc e; (3) it can withstand scrutiny under traditional
contra ct defe nses under state law; and (4) state law aff ects the enfor cea

bility of the ag ree ment. Id.
at 780; In re Nexion Health at Humble, Inc. , 173 S.W .3d 67, 69 (Tex. 2005)(pe r curia m). The mere fa ct t h at a contra ct aff

ects interstate commerc e, thus trig g ering the FAA , does not prec lud e enfor ceme nt under the TG AA as w ell. In re D. W ilson Construction , 196 S.W .3d at 780. For the FAA to pree mpt the TGAA, state law must ref use to enfor ce an arbitra tion ag ree ment that the FAA would enfor ce, either beca use (1) the TGAA has expressly exempted the ag ree ment from cover ag e

or (2) the TGAA has imposed an enfor cea bility require men t n o t fo u n d i n t he FAA

. Id. I n the instant case , the TGAA has expressly exempted the arbitra tion ag ree ment from its cover ag e beca use the ag ree ment was made befor e J anua r y 1 , 1 9 6 6

. T E X . C IV . P R A C .&R E M .C O D E AN N . § 171.002(a) (5).DOES T HE FEDERAL ARBITRATION ACT AP P LY?

CUSA maintains that the FAA and case s interpre ting i t s provisions apply in this case to deter mine whether the three arbitra tion order s are final for purposes of confirming and vacating the

awa rd. I f the three order s are not final, the district court did not have jurisdiction to either confirm

or vac ate the a

war d. TPL T urg es that bec ause this ca se is in state court, the FAA does not g overn the proc edure s of conf

irmation and vac ation. We will first consider whether the FAA applies t o this arbitra tion g ener ally

. The FAA applies to all suits in state and fede ral court when the dispute conce rns a “contr act evidenc ing a transac tion involvi ng commerc e.” Jack B. Anglin Company v. Tipps , 842 S.W .2d at 270, quoting Perry v. Thomas , 482 U.S. 483, 489, 107 S.Ct

. 2520, 2525, 96 L .Ed.2d 426 (1987). Under the FAA , “commer ce” means commerc e among the states. 9 U.S.C.A. § 1. I ts application is not limit ed solely
to interstate shipment of g oods. Jack B. Anglin Company v. Tipps , 842 S.W .2d at 270, citing Prima Paint v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 401 n.7, 87 S.Ct

. 1801, 1805 n.7, 18 L .Ed.2d 1270 (1 967). I n its response to CUSA’s mandamus petition, TPL T ref uses to conce de that th e FA A i s applicable to the arbitra tion ag ree ment betwee n the parties, noting “that is a complex issue bey ond the s cope of this proce eding .” TPLT d i d not contest t he FAA’s applicability in the t rial court. I n fac t, TPL T expressly re lied on 9 U.S.C.A. § 10(a) (2) in its motion to vaca te t he arbitration order s

on the g round of evident par t i al i t y . I n its response to CUSA’s motion to quash the reque st for 3 production of documents from a non-par ty (Miller’s law firm), TPL T stated that the case is g overne d by the Fe dera l Arbitration Act. Simi larly , TPL T’s counsel stated in open court during the Dec ember 14, 2007 hear ing that “the standard of evident partiality is set forth in the fede ral statute, and that

9 U

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. § 1 0 ( a ) ( 2 ) p r o v i d e s t h a t t h e “ U n i t e d S t a t e s c o u r t i n a n d f o r t h e d i s t r i c t w h e r e i n t h e a w a r d w a s 3
m a d e m a y m a k e a n o r d e r v a c a t i n g t h e a w a r d u p o n t h e a p p l i c a t i o n o f a n y p a r t y t o t h e a r b i t r a t i o n . . . w h e r e t h e r e w a s e v i d e n t p a r t i a l i t y o r c o r r u p t i o n i n t h e a r b i t r a t o r s , o r e i t h e r o f t h e m . ” 9 U

. S

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.fede ral statute g overns this arbitra tion and the conduct of the arbitra tors

. . . .” Having soug ht relief

pursuant to the FAA and having advised the trial court that the FAA g overns the case , TPL T should not be hea

rd to contest the a

pplicability

of the F AA. When there is no express ag ree ment to arbitra te under the FAA , a par t y m ay establish the applicabi l i t y o f the FAA by showing that the transac tion aff ects or involves interstate commerc e. Jack B. Anglin Co. v. T

ipps , 842 S.W .2d at 269-70; Associated Glass , Ltd. v. Eye T en Oaks Invs., Ltd. , 147 S.W .3d 507, 511 (Tex.App.--San Antonio 2004, orig

. proce eding ). Commerce under the fede ral act is broadly construed and the amount of commerc e considere d in the contra ct need not be substantial. Eye Ten Oaks , 147 S.W .3d at 511. As long as a contra ct rela tes to interstate commerc e, the FA A is impli cate d. Id. By virtue of the ag ree ment to arbitra te enter ed into on Marc h 12, 2004, the parties ag ree d to add certain claims to the ex isting arbitration being conducte d pursuant to the arbitration cl au s e i n the 1954 convey ance . The claims being added are rela ted to oil and g as interests and are simil ar to the claims alre ady

being arbitra

ted by the parties. I t is a matter of common knowledg e that the oil industry involves interstate commerc e. We conclude that the FAA g overns enfor ceme nt of the arbitra tion ag ree ment at issue in this case.

CONF IRMATION AND VACATION OF ARBITRAL AWARD S ec t i o n 9 of the FAA provides that if the parties have ag ree d that a judgme nt of the cou rt shall be enter ed upon the awa rd made pursuant to the arbitra tion, and specifie s the court, then at any time within one y ear afte r t he award is made any party to the arbitra

tion may apply to the court so specifie d for an order confirmi n g the awa rd. 9 U.S.C.A. § 9. The court must confirm the awa rd unless the awa

rd is vacated, modified, or corr ecte d as presc ribed in Sections 10 and 11 of the FAA

. Id. A party seeking to vacate an awa rd beca use of alleg ed “evide nt partiality ” by a neutra l arbitra tormust file a motion to v ac at e wi t h the trial court “within three months afte r the awa rd is filed or delivere d.” 9 U.S.C.A. § 12. The three month pe riod is considere d to be a limit ations period. See Florasynth, Inc. v. Pickholz , 750 F.2d 171, 175 (2nd Cir. 1984); Cullen v. Paine, W ebber, Jack

son & Curtis , Inc. , 863 F.2d 851, 853- 54 (11th Cir. 1989)(noting that sever al other c ircuits trea ted the three month period as a limit ations period). I f a party does not file a motion to vacate the awa rd in that time period, the trial court is require d to g rant an order confirming the award. 9 U.S.C.A. §§ 9 and 12. I f CUSA is corr ect that the arbitra tion order s beca me fi n al n o l at er t h an J uly 9, 2007, TPL T did not timely file its motion to vacate and the trial court lacke d discretion to delay ruling on the motion to confirm. ARE THE ARBIT RATION ORDERS FIN AL? TPL T contends that deter

mination of whether the arbitra tion order s are final should be made by looking a t Texas law. “Proce dural matters rela ting to the confirma tion of arbitra tion awar ds in Texas courts are g overne d by Texas law even if the FAA supplies the substantive rules of decision.” Garza/Phelps Dodge Refining Corp. v. Phelps Dodge Refining Corp./Garza , 262 S.W .3d 514, 519 (T ex . App.--E l Paso 2008, no pet.), quoting Roehrs v. FSI Holdings, Inc. , 246 S.W .3d 796, 80 4 (Tex.App.--Da llas 2008, pet. denied) ; see also Jack B. Anglin Co. v. Tipps , 842 S.W .2d 266, 272 (Tex. 1992)(“f

eder al proc edure does not apply in Texas courts, even when Texas courts apply the Fe dera l Act”) ; In re D. W ilson Constr. Co. , 196 S.W .3d 774 (Tex. 2006)(F AA only pree mpts state statutes to the extent t h at t h ey are inconsistent with FAA ); Hamm v. Millennium Incom e Fund, L.L.C

. , 178 S.W .3d 256, 260 n.3 (Tex.App.--Houston [1st Dist.] 2005, pet. denied) , cert. denied , 549 U.S. 888, 127 S.Ct

. 297, 166 L .Ed.2d 154 (2006). We ha ve dete rmined, howe ver, tha t the TGAA does not apply

in this case . Fur

ther, the finality of the a

rbitration orde rs is a matter of substantive law. Acc ording ly , we will apply fede ral law in deter mining whether the arbitra tion order s are finalfor pur

poses of c onfirmation and va cation. I n the arbitra tion ag ree ment, the parties ag ree d that the arbitra tion awa rd would be final and subject to confirma tion by a court: “The awa rd of a majority of the arbitra tors shall be binding upon the parties here to and judgme nt may be enter ed there on in any court having jurisdiction.” The FAA require s that the arbitra tion awa rd be “mutual, final, and definite” as a prer equisite to confirma tion. See 9 U.S.C.A. § 10(a) (4)( an awa rd may be vacated if it is not mutual, final, and definite). An arbitra l awa rd i s gen erally deeme d final when it evidenc es the arbitra tors’ intention to resolve all claims submitt ed for arbitra tion. Fradella v. Petricca , 183 F.3d 17, 19 (1st Cir. 1999); Michae ls v. Mariforum Shipping, S.A. , 624 F.2d 411, 413 (2nd Cir. 1980). A c ourt has no author ity to review

an aw ard la cking the re quisite deg ree of finality

. Michae ls , 624 F.2d a t 414. Fe dera l courts have rec og nized exceptions to the finality require ment. One exception exis ts when the issues of liability and damag es are bifurcated in the arbitra tion proce eding

. See e.g., Hart Surgical, Inc. v. Ultracision, Inc. , 244 F.3d 231, 236 (1st Cir. 2001)(whe re arbitra tion is bifurcated into liability and damag es phases, the arbitra l awar d with respec t to liability is a final awa rd under the FAA ; the First Circuit limit ed its holding to case s in which the parties had formally ag ree d to bifurca te the arbitra tion); Providenc e Journal Co. v. Providenc e Newspaper Guild , 271 F.3d 16 (1st Cir. 2001)(e x tending Hart Surgical to informal bifurc ation ag ree ment). Another ex ception to the finality require ment has been found when the arbitra tion panel order s interim secur ity or temporar y equitable relief

. See e.g., Y

asuda Fire & Marine Insurance Company of Eur. v. Cont' l Casualty Co. , 37 F.3d 345, 348 (7th Cir. 1994)(a rbitral “interim order of secur ity ” found to b e a fi n al awa rd beca use the order was nece ssary to preve nt the final awa rd from becoming meaning less); Pacifi c Reinsurance Managem ent Corp. v. Ohio Reinsurance Corp. , 935 F.2d 1019, 1023 (9th Cir. 1991) (ar bitral “interim final order ” providing temporar y equitable relief nece ssary to make potential finalawa

rd meaning ful found to be final and subject to confirma tion). A third exception exis ts when the interim awa

rd finally disposes of a separ ate and independe nt claim. See e.g., Zeiler v. Deitsch , 500 F.3d 157, 168 (2nd Ci r. 2 0 0 7 )(eight interim order s issued by arbitra tion panel wer e resolution of separ ate and independe nt claim and subject to confirma tion even though the order s did not dispose of all claims submitt ed to arbitra tion); The Home Insurance Company v. RHA/Pennsy lvania Nursing Homes, Inc. , 127 F.Supp.2d 482, 490 (S.D. N.Y. 200 1 ) ( a n in te rim awa rd which adjudicate d a portion of a damag es claim and order ed the pay ment of that sum is final even though liability and potential damag es issues rema ined to be resolved with respe ct to the rema inder of the same claim; court held that an arbitra tion awa

rd that fully disposes of a separ ate and independe nt claim is final for purposes

o f confirma tion under the FAA even if other claims rema in pending ); Hart Surgical, Inc. v. Ultracision, Inc. , 244 F.3d 2 3 1 (1 s t C i r. 2001)(holding that an award which finally and definitely disposes of a separa te i ndepende nt claim m ay be conf irmed althoug h it does not dispose of all the claims that wer e submitt ed to arbitra tion); Publicis Communication v. True North Communications, Inc. , 206 F.3d 725, 727 ( 7th Cir. 2000)(interim arbitra tion order was sufficiently final and subject
to confirma tion); Metallgesellschaft A. G. v. M/V C apitan Constante , 790 F.2d 280, 283 (2nd C ir. 1986)(noting that shipowner would ha ve been entitled to summar y judgme nt in a district court for the amount of unpaid fre ight, court found that interim awa rd of damag es for unpaid fre ight was final and subject to confirma tion). Some courts have held that an interim awa rd is final when it repr esents the final deter

mination of a discrete issue, and is not subject to chang e or revision by the arbitra tors. Trade & Transport

, Inc. v. Natural Petroleum Chart erer, Inc. , 931 F.2d 191, 195 (2nd C ir. 1991) (par tial arbitra l awa

rd that decide d liability found to be a final awa rd); Island Creek Coal Sales Co.

v. City of Gainesville, Fla. , 729 F.2d 1046, 1049 (6th Cir. 1984)(a rbitral “interim order ” that finally and definitively disposed of separ ate, discrete , self-c ontained issue found to be final and subject toconfirma tion), overruled on other grounds by C o r t ez B yrd C hips, Inc. v. Bill Harbert C onst. Co. , 529 U.S. 193, 120 S.C t. 1331, 146 L .Ed.2d 171 (2000). Rely ing on the separ ate and independe nt or discrete claim doctrine ar t iculated in the fore g oing c ases, CUSA maintains that Arbitra tion Orders 4, 8, and 9 are final beca use they finally dispose o f ea ch of TPL T’s claims rela ting to eac h proper ty which is the subject of those order s. CUSA arg

ues that “whe ther CUSA diligently dev el o p ed NPRI -burde ned acr eag e in a particula r county in a particula

r locale had nothing to do with whether it was a diligent opera tor at other times in other place s in the context of completely di ff er en t fac ts.” I t g oes on to rea son that the order s which deal with particula

r proper ties wer e sufficie ntly final for confirma tion. We ag ree with CUSA that Arbitration Orde rs 4 and 9 disposed of discrete claims perta ining to separ ate units of proper ty

. The claims resolved by these order s are not depende nt on the resolution of or rela ted to the rema ining claims, namely , the Section 1, Bloc k 39 [S prabe rry Trend] claim and the Section 31, Bloc k 32 [Big Spring “F usselman” Field] claim, or the resolution of the attorney ’s fee s claims and assessment of 4 the costs of a

rbitration. Application of the separ ate and independe nt c laim doc trine is particula rly appropr iate in this case beca use the parties prese nted the case to the arbitra tion panel on a proper ty

by -prope rty basis and the parties expressly reque sted that the arbitra tion panel re n d er a partial decision on the proper

ties submitt ed to the arbitra tion panel during the ev i d en tiary hear ing. The arbitra tion panel ag ree d to rende r a decision on the proper ties submitt ed to it during the evidentiar y hear ing. T he re quest and ruling are ref lected in the f

irst para g raph of

Arbitration Or der N o. 9: On May 14, 2007, the arbitra tion panel convene d to hear evidenc e in the above sty led arbitra tion. The panel was asked by the parties to rende r a partial decision on the proper ties submitt ed at that hear ing and the panel acc ording ly does so in this order

. This order does not addre ss the proper ties not rea ched, nor does it addre ss attorney s’

A t o r a l a r g u m e n t , a p p e l l a t e c o u n s e l f o r C U S A s t a t e d t h e s e c l a i m s w e r e n o t p a r t o f t h e p e n d i n g l a w s u i t s b u t 4
w e r e s u b m i t t e d t o a r b i t r a t i o n b y a g r e e m e n t o f t h e p a r t i e s .fee s nor costs of arbitra tion all of which are rese rved. Wit h respe ct to the proper ties submitt ed to it, the panel make s the following decision . . . . Under these unique circ umstan ces, we conclude that Arbitration Orde rs 4 and 9 are sufficie ntly final for purposes of confirma tion and vacation. The three -month limit ations period for filing a motion to vacate the awa rds beg an to run no later than J uly 9, 2007 when th e ar b i tration panel enter ed Arbitration Orde r No. 9. See 9 U.S.C.A. §§ 10 and 12. Be cause TPL T filed its motion
to vaca te on Novembe r 7 , 2 0 0 7 after the expiration of the limit ations period, the trial court had a minist eria l duty to deny the motion to vacate and g rant the motion to confirm. The court abused its discretion by failing to so rule and by continuing the hear ing on the competing motions to confirm and vacate in order for discovery to be underta ken on the evident partiality issue. We conditionally g rant CUSA’s petition for wr it of mandamus. The writ will not issue unless the trial cour t fails to act in ac corda

nce w ith this opinion.

J anuar y 27, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, J., and Ables, J udg e (Ret.) Ables, Judge ( Ret.), sitting by assig nment, not participating