Cause No. 01-15-00640-CV

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS

AT HOUSTON

GREYSTONE MULTI-FAMILY BUILDERS, INC.,

 Appellant,

V. 

TES ELECTRIC LP,

 Appellee.

APPELLANT GREYSTONE MULTI-FAMILY BUILDERS,INC.’S 

MOTION TO STAY TRIAL PROCEEDINGS PENDING INTERLOCUTORY APPEAL

RICHARD B. PHILLIPS, JR.

State Bar No. 24032833

THOMPSON & KNIGHT LLP

One Arts Plaza

1722 Routh Street 

Suite 1500

Dallas, Texas 75201

Phone: 214-969-1700

Fax: 214-969-1751

rich.phillips@tklaw.com

J. MICHAEL BELL

State Bar No. 02079200

Megan H. Schmid

State Bar No. 24074383

THOMPSON & KNIGHT LLP

333 Clay Street 

Suite 3300

Houston, Texas 77002

Phone: 713-654-8111

Fax: 713-654-1871

michael.bell@tklaw.com

megan.schmid@tklaw.com

COUNSEL FOR APPELLANT

GREYSTONE MULTI-FAMILY BUILDERS,INC. 

ACCEPTED

01-15-00640-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/3/2015 2:42:24 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 9/3/2015 2:42:24 PM CHRISTOPHER A. PRINE Clerk
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 1

TO THE HONORABLE COURT OF APPEALS:

Under Texas Rule of Appellate Procedure 29.3, Appellant Greystone 

Multi-Family Builders, Inc. d/b/a GMFB, Inc. respectfully requests that 

this Court stay the trial court proceedings during the pendency of 

Greystone’s interlocutory appeal of the trial court’s refusal to compel 

arbitration. Greystone moved for a stay in the trial court, the but trial court 

denied the motion. .

Rule 29.3 gives this Court jurisdiction to stay trial court proceedings 

“to preserve the parties’ rights until disposition of the appeal.” TEX. R. APP.

P. 29.3. Greystone requests the stay to ensure that issues that should be 

arbitrated are not the subject of duplicative litigation during the 

interlocutory appeal. Without a stay, Greystone will have to litigate this 

case while waiting for this Court to decide whether the case should instead 

be sent to arbitration. Such a result would completely defeat the purpose of 

arbitration. Moreoever, there would be no harm to Appellee TES Electric if 

the litigation is stayed because the appeal is set on an accelerated basis 

under the Texas Rules of Appellate Procedure.
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 2

BACKGROUND

This case arises out of a dispute between a subcontractor and a 

general contractor in connection with a multi-family construction project at 

807 S. Post Oak Lane, Houston, Texas. Appellee TES Electric, LP, as the 

subcontractor, and Greystone, as the contractor, are parties to a subcontract 

agreement, dated October 18, 2012, which governs the parties’ rights, 

duties, and relationship with one another. Pursuant to the subcontract, 

TES was to provide the electrical services for the project. After 

TES filed suit against Greystone, Greystone moved to compel 

arbitration under Article 10 of the subcontract. (CR 17-85.) Greystone also 

filed a Motion for Protective Order asking for protection from discovery 

pending the resolution of the motion to compel arbitration. (CR 86-107.) 

The trial court denied the motion to compel arbitration (CR 155), and 

Greystone has appealed that denial. (CR 158-59.) 

Greystone also asked the trial court to stay all proceedings pending 

resolution of the appeal. But the trial court denied that motion as well. 

(See Ex. A.) Greystone seeks a stay from this Court because a continuation 
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 3

of the discovery and proceedings in the trial court would frustrate the very 

purpose of the appeal.

ARGUMENT & AUTHORITIES

An interlocutory appeal from a denial of a motion to compel 

arbitration is permitted pursuant to Section 51.016 of the Texas Civil 

Practice and Remedies Code. Section 51.016 expressly permits an 

interlocutory appeal “under the same circumstances that an appeal from a 

federal district court’s order or decision would be permitted by 9 U.S.C. 

Section 16.” Tex. Civ. Prac. & Rem. Code § 51.016. Section 16(a)(1)(C) of 

the FAA expressly authorizes an appeal from an order “denying an 

application . . . to compel arbitration . . . .” 9 U.S.C. § 16(a)(1)(C). Further, 

Section 16(a)(1)(A) permits an appeal from any order refusing a stay of any 

action under Section 3 of the FAA. 9 U.S.C. § 16(a)(1)(A).

Greystone asked the trial court for a stay—and now seeks a stay in 

this Court—to minimize the potential losses from unnecessary duplication 

of proceedings and to avoid the risk of inconsistent rulings. Texas Rule of 

Appellate Procedure Rule 29.3 provides this Court with the authority to 
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 4

issue temporary orders to preserve the parties’ rights during the pendency 

of the interlocutory appeal. TEX. R. APP. P. 29.3. 

Indeed, Texas appellate courts routinely grant stays of trial 

proceedings while reviewing an order denying a motion to compel 

arbitration. See e.g., In re Scott, 100 S.W.3d 575, 578 (Tex. App.—Fort Worth 

2003, orig. proceeding) (“We stayed the trial court’s discovery order 

pending the outcome of this original proceeding.”); see also Rao v. American 

Arbitration Association, No. 05-13-00462-CV, 2014 WL 3513258, at *1 (Tex. 

App.—Dallas July 15, 2014, no pet. h.) (discussing the court’s granting of an 

emergency motion to stay proceedings in the trial court, pending 

interlocutory appeal, in the underlying case); Slaymaker v. Ballow, No. 12-

02-00381-CV, 2003 WL 21356034, at *1 (Tex. App.—Tyler June 11, 2003, no 

pet.) (staying the trial court proceedings pending the appeal of an order 

denying a motion to stay litigation and compel arbitration). 

Moreover, the Texas Supreme Court has even held that it can be an 

abuse of discretion to refuse to stay litigation against two defendants while 

a plaintiff’s claims against a third defendant are arbitrated. See In re Merrill 

Lynch & Co., Inc., 315 S.W.3d 888, 889 (Tex. 2010).
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 5

To allow the trial court proceedings to proceed pending an appeal of 

the denial of the motion to compel arbitration would frustrate the intent of 

arbitration agreement and would force Greystone to incur costs and 

burdens that sought to avoid by contracting for arbitration.

TES has already served Greystone with its “First Set of Integrated 

Discovery,” which included 48 separate requests for production and 11 

separate interrogatories, all of which deal with topics concerning or related 

to the merits of the underlying controversy in this case. 

Without a stay of the litigation pending appeal, Greystone will incur 

significant and unnecessary expense if forced to respond to TES’s discovery 

requests before the arbitration issue is resolved on appeal. One of “the 

main benefits of arbitration lie in expedited and less expensive disposition 

of a dispute . . . .” Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex. 

1992). Allowing Appellee to conduct discovery before this Court has ruled 

on the arbitration issue would force the parties to litigate their dispute in 

the trial court even though it may ultimately be determined by this Court 

that the claims should be arbitrated. See, e.g., In re Champion Tech., Inc., 173 

S.W.3d 595, 599 (Tex. App.—Eastland 2005, orig. proceeding) (holding that 
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 6

a trial court may not defer ruling on an arbitration issue until after all 

discovery is completed because doing so forces the parties to litigate their 

dispute in trial court even though it may be ultimately determined that the 

claims in whole or in part are subject to arbitration) (citing In re MHI 

Partnership, Ltd., 7 S.W.3d 918, 923 (Tex. App.—Houston [1st Dist.] 1999, 

orig. proceeding)). If Greystone is forced to litigate and this Court 

ultimately determines that the dispute should be arbitrated, then the trial 

court’s and the parties’ time and resources will have been wasted. A stay 

of the trial court’s proceedings would serve to promote the interest of 

justice and avoid wasting valuable resources.

Moreover, TES will not be prejudiced by a stay. Appeals from 

interlocutory orders, such as this one, are accelerated, with shorter 

deadlines for filing the record and the parties’ briefs. See TEX. R. APP. P. 

26.1(b), 28.1, 35.1(b), 38.6(a). Additionally, the court of appeals must give 

precedence to interlocutory appeals. TEX. R. APP. P. 40.1(b). And because 

this appeal involves a discrete legal issue, Appellant anticipates that this 

Court may be able to rule expeditiously. Therefore, a reasonable delay so 

that this Court can conduct a meaningful review of the trial court’s decision 
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 7

will not cause any prejudice to TES, particularly in light of the burden that 

would otherwise be imposed on Greystone.

CONCLUSION

WHEREFORE, Appellant Greystone Multi-Family Builders, Inc. 

respectfully requests that this Court stay the trial court proceedings during 

the pendency of the interlocutory appeal. Appellant further requests 

general relief.
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 8

Respectfully submitted,

THOMPSON & KNIGHT LLP

BY: /S/ Richard B. Phillips, Jr.

Richard B. Phillips, Jr.

State Bar No. 24032833

rich.phillips@tklaw.com

One Arts Plaza

1722 Routh Street, Suite 1500

Dallas, Texas 75201

Phone: (214) 969-1700

Fax: (214) 969-1751

J. Michael Bell

State Bar No. 02079200

michael.bell@tklaw.com

Megan H. Schmid

State Bar No. 24074383

megan.schmid@tklaw.com

333 Clay Street, Suite 3300

Houston, Texas 77002

Phone: 713-654-8111

Fax: 713-654-1871

COUNSEL FOR APPELLANT 

GREYSTONE MULTI-FAMILY 

BUILDERS,INC.
APPELLANT’S MOTION TO STAY TRIAL PROCEEDINGS 

PENDING INTERLOCUTORY APPEAL PAGE 9

CERTIFICATE OF CONFERENCE

On September 3, 2015, I discussed this motion with Darren A. Braun, 

counsel for Appellee TES Electric, LP. Mr. Braun stated that Appellee is 

opposed to the requested stay. 

 /s/ Megan H. Schmid 

Megan H. Schmid

CERTIFICATE OF SERVICE

On this 3rd day of September, 2015, a true and correct copy of the 

foregoing motion to stay litigation pending interlocutory appeal has been 

served on the following counsel for Appellee by electronic service:

Ashish Mahendru

Darren A. Braun

Mahendru, P.C.

639 Heights Boulevard

Houston, Texas 77007

 /s/ Richard B. Phillips, Jr. 

Richard B. Phillips, Jr.