FILED

July 16, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

SOUTHEAST DRILLING & )

BLASTING SERVICES, INC., )

)

Plaintiff/Appellee, )

)

VS. ) Rutherford Chancery

) No. 97CV-60

BRS CONSTRUCTION COMPANY, )

) Appeal No.

Defendant/Appellant ) 01A01-9706-CH-00272

)

and )

)

STONES RIVER PLACE LTD., )

ED BOYD EXCAVATING, INC., )

)

Defendants/Appellees. )

APPEAL FROM THE CHANCERY COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE DON R. ASH, CHANCELLOR

For Southeast Drilling & Blasting For Stones River Place, Ltd and

Services, Inc.: BRS Construction:

Frank Grace, Jr. William W. Gibson

Dana C. McLendon, III James C. Bradshaw, III

Waller Lansden Dortch & Davis Wyatt Tarrant & Combs

Nashville, Tennessee Nashville, Tennessee

Charles M. Levy

Coral Gables, Florida

For Ed Boyd Excavating, Inc.:

Wm. Kennerly Burger

Murfreesboro, Tennessee

Jack E. Seaman

Nashville, Tennessee

VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1

Pursuant to Tenn. R. App. P. 2, we suspend the application of Tenn. R. App. P. 24-26

and 29. We also find oral argument to be unnecessary pursuant to Tenn. R. App. P. 35(c).

2Tenn. Ct. App. P. 10(b) provides:

The Court, with the concurrence of all judges participating

in the case, may affirm, reverse or modify the actions of the trial

court by memorandum opinion when a formal opinion would

have no precedential value. When a case is decided by

memorandum opinion, it shall be designated “MEMORANDUM

OPINION,” shall not be published, and shall not be cited or relied

on for any reason in a subsequent unrelated case.

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MEMORANDUM OPINION

This extraordinary appeal involves a dispute over whether discovery should

be stayed pending resolution of a motion to compel arbitration. Since the

application and answers fully set forth the parties’ positions and the material facts,

we dispense with further briefing and oral argument and proceed to the merits of

the appeal in order to save the parties additional time and expense.1 We find that

this is a proper case for an extraordinary appeal because the trial court should

resolve the motion to compel arbitration prior to allowing any proceedings related

to the merits. Therefore, in accordance with Tenn. Ct. App. R. 10(b),.2 we vacate

the order directing that depositions be held within thirty days and reserving

judgment on the motion to compel arbitration for forty-five days and remand the

case to the trial court for further proceedings in accordance with this opinion.

I.

Stones River Place, Ltd. hired BRS Construction Company as the general

contractor for the construction of a multi-unit residential development on land

owned by Stones River Place. BRS Construction entered into three contracts with

Ed Boyd Excavating, Inc. for site work, paving, and utilities. Each of these

contracts provided that “[a]ny controversy or claim between the Contractor and

the Subcontractor arising out of or related to this Subcontract or the breach

thereof, shall be settled by arbitration . . .” Ed Boyd Excavating subsequently

entered into a subcontract with Southeast Drilling and Blasting Services, Inc. to

perform a portion of its subcontract.

On August 23, 1996, Southeast Drilling served a notice of non-payment on

BRS Construction and Stones River Place in compliance with the materialman’s
3BRS Construction has filed a supplemental application for an extraordinary appeal

requesting that this court reverse the trial court’s decision to stay the arbitration. We decline to

address this issue because no order has yet been entered. Once entered, the order resolving the

motion to stay arbitration may be appealable as of right pursuant to Tenn. Code Ann. § 29-5-319

(Supp. 1996) and Tenn. R. App. P. 3(a).

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lien laws and, on October 18, 1996, Southeast Drilling filed liens on the property.

On January 16, 1997, Southeast Drilling filed suit to enforce its liens in the

Chancery Court for Rutherford County. Ed Boyd Excavating filed a cross-claim

against BRS Construction and Stones River Place alleging, among other claims,

breach of contract.

On May 16, 1997, Ed Boyd Excavating filed a motion to compel the

appearance of the two principals of BRS Construction, Bill Starnes and Bob R.

Starnes, for depositions. On May 23, 1997, BRS Construction moved to compel

arbitration pursuant to Tenn. Code Ann. §§ 29-5-302, -303 (Supp. 1996). On June

16, 1997, the trial court reserved judgment on the motion to compel arbitration for

forty-five days but directed that Bob R. Starnes, Sr., Bob R. Starnes, Jr. and Bill

Starnes be made available for depositions within thirty days. On June 27, 1997,

Ed Boyd Excavating moved to stay the pending arbitration which BRS

Construction had previously filed with the AmericanArbitrationAssociation. The

trial court announced from the bench its decision to stay the arbitration

proceedings but no order reflecting that ruling has yet been entered.3 

On June 24, 1997, BRS Construction filed this application for an

extraordinary appeal, asserting that the trial court erred in compelling discovery

while its motion to compel arbitration was pending. BRS Construction

subsequently filed a motion for a stay pending appeal. On June 26, 1997, this

court ordered the parties to file an answer to the application within ten days.

Southeast Drilling has responded that the trial court should have stayed the

proceedings until a decision is reached on the motion to compel arbitration. Ed

Boyd Excavating has responded in opposition to the application and contends that

discovery is necessary in order to determine whether the motion to compel

arbitration should be granted. 

II.
-4-

Arbitrating disputes is favored by the state, federal, and common law.

Dewitt v. Al-Haddad, App. No. 89-394-II, 1990 WL 50727, at *7 (Tenn. Ct. App.

April 25, 1990) (No Tenn. R. App. P. 11 application filed). By enacting the

Uniform Arbitration Act, the General Assembly has embraced a legislative policy

favoring enforcement of agreements to arbitrate. Buraczynski v. Eyring, 919

S.W.2d 314, 317 (Tenn. 1996). 

Tenn. Code Ann. § 29-5-303 enables courts to make summary

determinations concerning whether a party is entitled to arbitration. Samson v.

Hartsville Hospital, App. No. 01A01-9609-CH-00430, 1997 WL 107167, at *2

(Tenn. Ct. App. March 12, 1997) (No Tenn. R. App. P. 11 application filed). 

Tenn. Code Ann. § 29-5-303(a) provides that, when one party shows the existence

of an arbitration agreement and the other party denies the existence of an

agreement, “the court shall proceed summarily to the determination of the issue

so raised . . .” Tenn. Code Ann. § 29-5-303(b) also provides that, when a party

has moved to stay an arbitration proceeding and a dispute exists with regard to the

arbitration agreement, the issue “shall be forthwith and summarily tried.” Tenn.

Code Ann. § 29-5-303(d) further provides that: “Any action or proceeding

involving an issue subject to arbitration shall be stayed if an order for arbitration

or an application therefor has been made under this section . . .” 

These provisions evidence a clear statutory intent that courts determine

whether a party is entitled to arbitration prior to conducting any proceedings

related to the merits. Thus, the normal course of proceedings is first to resolve the

issue of whether the parties should be required to arbitrate. All other proceedings

on the merits, including discovery, should be stayed pending this determination.

Like any other contract right, the right to arbitration can be waived. The

answer of Ed Boyd Excavating indicates that the record currently before the trial

court does not contain sufficient facts to determine whether a waiver has occurred.

Thus, some discovery may be necessary to enable the trial court to determine

whether the motion to compel arbitration should be granted. Such discovery

should be limited to matters relevant to the motion to compel arbitration and any

disputes concerning whether particular discovery is related to this issue shall be

resolved by the trial court.
4Tenn. Code Ann. § 29-5-319 permits an appeal as of right from an order denying an

application to compel arbitration or an order granting an application to stay arbitration. An order

compelling arbitration is not appealable as of right, Peters v. Commonwealth Associates, App.

No. 03A01-9508-CV-00295, 1996 WL 93768, at *2 (Tenn. Ct. App. March 5, 1996) (No Tenn.

R. App. P. 11 application filed); Anderson County v. Architectural Techniques Corp., App. No.

03A01-9205-CH-00184, 1993 WL 5921, at *1 (Tenn. Ct. App. January 14, 1993) (No Tenn. R.

App. P. 11 application filed), but may be reviewed pursuant to Tenn. R. App. P. 9 or 10. 

-5-

III.

For the reasons stated herein, we vacate the trial court’s June 16, 1997 order

and remand the case with directions to enter an order staying all proceedings on

the merits pending a resolution of the motion to compel arbitration. The order

may provide for discovery only with regard to the issue of whether the arbitration

clause should be enforced. Once the trial court has ruled on the motion to

compel arbitration, the parties may appeal pursuant to Tenn. R. App. P. 3(a) and

Tenn. Code Ann. § 29-5-319 or, if necessary, Tenn. R. App. P. 9 or 10.4

 We also

tax the costs of this appeal to Ed Boyd Excavating, Inc. for which execution, if

necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

HENRY F. TODD, P.J., M.S. 

________________________________

BEN H. CANTRELL, JUDGE