# FILED
July 16, 1997 Cecil W. Crowson Ap pellate Cou rt 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 N o. Defenda nt/Appella

nt ) 01A01-9706- CH-00272

) and ) ) STONES RIVER PLACE LTD., ) ED BOYD EXCAVATING, INC., ) ) Defenda nts/Appell ees. )
APPEAL FROM THE CH ANCERY COU RT FOR RUTHERFORD C OUNTY

AT MURFREESBOR O, TENNESSEE THE HONORAB LE DON R. ASH, CHANCEL LOR For Southe ast Dril ling & Blas ting For Stone s River Place, L td and Services, Inc. : BRS Const ruction : Frank Grace, Jr. William W . Gibson Dana C. McLendon, III James C. Bradshaw, III Waller L ansden Dor

tch & Dav is Wyatt Ta rrant & C ombs Nashville, Tennessee Nashville, Tennessee Charles M . Levy Coral Ga bles, Florida For Ed Boyd Excavating, Inc. : Wm. Kennerly Burger Murfreesboro, Tennessee Jack E. Seaman Nashville, Tennessee


## VACATED AND REMANDED WILLIAM C. KOCH, JR., JUDGE1 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 unnecessa ry pursuant to Tenn. R. App. P. 35(c ).

2 Tenn. Ct. A

pp. P. 10(b ) provide s: The Court, with the concurrence of al l judges part icipating in the case, may aff

irm, reverse or modify

the actions of

the trial court by memorandum opinion whe n a forma l opinion wo

uld have no precedential value. When a case i s decided by memorandum

opinion, it shall be designated “MEMORANDUM OPINION,” shall not b e published, and sha ll not be cited or

relied on for any r

eason in a subsequent unrelated case.

-2- 

## MEMORANDUM OPINION

Thi s extraord

inary appe al involves a dispute ove r whethe r discover y sh oul d be stayed pend

ing resoluti on of a moti on to compe l a rbitratio n. Since the applicati on and answe

rs fully set forth

the partie s’ positions a

nd the materia

l facts,
we dispense w ith furthe

r briefi ng andoral argument and procee d to the mer its of the appeal in order to sa

ve the parties additional time and expense. 1 We find that this is a proper

case for an extr aordin ary appea

l because the trial court should resolve the motion t

o compel a

rbitratio n prior to allowing any proceedings related to the merits. Therefore, in acc ordance with Tenn. Ct. App. R. 10(b), .2 we vaca te the order directing that depositions be held within thirt y days and re serving judgment on the motion

to compel a

rbitratio n for for

ty-five da ys and rem and the case to the

trial cour t for fur ther proc eedings in a

ccordanc e with this opinion.

I.

Stones River

Place, Ltd. hired

BRS Construction Company as the general contractor

for the c onstructi on of a multi-unit residenti al developm

ent on land owned by Stones River Place. BRS Construct ion entere d into three

contract s with Ed Boyd Excava ting, Inc. fo r site wo rk, paving , and utili ties. E ach of the se c ontracts provided that “[a]ny controversy or claim between the Contract or an d the Subcontractor arising out of or r el ated to this Subcontract or the breach thereof, shall be settled by ar bitration . . .” E d Boyd Exca vating subse quently entered into a subco ntract w ith Southeast Drilling and Blasting Services, Inc. to perform a portion of

its subcontract.

On August 23, 1996, Southeast Drilling served a notice of non-paym ent on BRS Construction and Stones River Place in compliance with the materialman’s3 B RS Construction has filed a supplemental application for an extraordinary appeal requesting that t

his co urt r ever se the tria l cou rt’s deci sion t

o stay the a rbitr ation . Wedecline to addressthis issue because no order has y et been entered. Once enter ed, the order resolving the motion to stay arbitration

may be appe alable as of right pursuant to Tenn. Code Ann. § 29-5-319 (Supp. 1996) and Tenn. R. App. P. 3(a). -3- lien laws and, on October 18, 1996, Southeast Drilling filed liens on the property. On January 1 6, 1997, South east Dr illing file d suit to enf

orce its l iens in the Chancery Court for

Rutherfo rd County. Ed Boyd Excavatingfiled a c ross-cla im against BRS Const

ruction and

Stones Riv er Plac e alleging , among oth er claim s, breach of contract
.
On Ma y 16, 1997, Ed Boyd Excavating f iled a moti on to compel t h e appearance o f the two principals of BRS Construction, Bill Starnes and Bob R. Starnes, for deposi tions. On May 23, 199 7, BRS C onstruction moved to compel arbitrat ion pursuant

to Tenn. Cod e Ann. §§ 29- 5-302, -30 3 (Supp. 19 96). On June 16, 1997, the trial courtreserve d judgment on the motion t

o compel a

rbitratio n for forty-fi ve days but directed that Bob R. Starnes, Sr., B ob R. Sta rnes, Jr. and B ill Starnes be made ava

ilablefor deposi tions withi n thirty day s. On June 27, 1997, Ed Boyd Exca

vating move d to stay the pending arb itration which B RS Constructi on had previously filed with the Ameri can Arbitra tion Asso ciation. The trial court announced fr om the bench its de cision to sta y the arbit

ration proceedin gs but no orde

r refle cting that r

uling has yet

been ente

red. 3

On June 24, 1997, BRS Construction filed this application for an extraordinary appeal, asserting that the trial court erred in compelling discovery whileits motion tocompel ar bitration was pending. B RS Constr uction subsequently

filed a moti on for a stay pending appeal. O n Jun e 26, 1997, this courtordered t

he partie s to file an a

nswer to t

he applica

tion within

ten days. Sou theast Drilling has responded that the trial cour

t should have

stayed th e proceedin gs until a dec ision is r eached on t he motion to compel a rbitratio n. Ed BoydExcavat

ing has responded in opposition to the application and contend s that discovery is necessary in order to determine whether th e motion to compel arbitratio n shoul d be grante d.

II.-4- Arbitra ting disputes is f

avored by th e state, federal , and com mon la w . Dewitt v. Al- Haddad , App. No. 89-3 94-II, 1 990 WL 50727 , at *7 (T enn. Ct. App. April25, 1990) (No Tenn. R. App. P. 11 applica tion filed) . By enac ting the UniformArbitra

tion Act, the General Assembly has embraced a legislative policy favoring enforcement of agreement s to arbit rate. Buracz ynski v. Eyr

ing , 919 S.W.2d 314, 31 7 (Tenn. 199 6).

Tenn. Code Ann. § 29-5-303 enables courts to make s umm ary determina

tions concernin g whether a pa rty is ent itled to a rbitratio n. Samson v. Hartsville Hospital , App. N o. 01A01- 9609-CH- 00430, 1997 W L 107167, a

t *2 (Tenn. Ct. App. March 1 2, 1997) (No Tenn. R. App. P. 11 ap plicatio n filed). Tenn. Code Ann. § 29-5-303(a) provides that, when one party shows the existence of an arbitration agreem ent and theother party denies the existence of an agreement, “the cour

t shall proc eed summa

rily to the deter

mination of the issue
so raised . . .” T enn. Code Ann. § 29- 5-303(b) also provide s that, when a part y has moved to stay an arbitration proce eding and a dispute exi sts with r

egard to th e arbitrat ion agreement, the iss ue “shall be f orthwith a

nd summari ly tried. ” Tenn. Code Ann. § 29- 5-303(d) f urther pr ovides that: “Any act

io n orproceedi ng involving an issue sub

ject to ar bitration s hall be sta

yed if an or

der for arbitra tion or an application therefor has been made under this section . . .”

T hese provisions evidence a clear statutory intent that courts determ in e whether a party is entit led t o arbitra tion prior t

o conducting any procee dings related to the mer

its. Thus , thenormal co urse of pr oceedings is first toresolve th e issue of whethe

r the par ties should be

required to arbitrate. All other

proceedi ngs on the merit s, including discovery, should be sta yed pending t

his determ

ination.

Like any other c ontract r ight, the r ight to arbi tration ca

n be waived. The
answer of Ed Boyd Excavating indicates that the record currently before the trial courtdoes not cont ain suffic ient fact s to determine whether a waiver has occur

red. Thus, some discov ery may be necessar y to en able the tr

ial court t

o determi ne whether the motion t

o compel a

rbitratio n should be granted. Such discovery shouldbe limited

to matter s relevan

t to the motion to compel arbitra tion and any disputes concerning whether particular discovery is relate d to this issue shall be resolved by

the trial court.4 Tenn. Code Ann. § 2 9-5-319 permits an appeal as of right from an order denying a n application to compel arbitration or an order granting an application to stay arbitration. An order compelling arbitra

tion is notappeala

ble as of right, Peters v. Commonwealth Associates , App. No. 03A01-95 08-CV-00 295, 1996 W L 93768, a

t *2 (Tenn . Ct. App. March 5, 1996) (No Tenn. R. App. P. 11 applic ation filed); Anderson County v. Architec tural Tech niques Cor

p ., 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 trialcourt’s June 16, 1997 order and rema nd the casewith dire ctions to enter an or der stayin g all proce edings on the merits pending a res olution of the moti on to compel arbitration. The order may providefor discov ery only w ith regar d to the issue

of whethe

r the arb itration clauseshould be enf

orced. Once the

tria l court has ruled o n the motion t o compel arbitra

tion, the p arties ma

y appeal pur suant

to Tenn. R. App. P. 3(a) and Tenn. Code Ann. § 29-5-319 or, if ne cessary, Tenn. R . App. P . 9 or 10. 4 We also tax the costs of this ap peal to Ed Bo yd Excavati ng, Inc. f or wh ich execut

ion, if necessary, may issue.

_________________ __ _________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

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

_________________

_______________ BEN H. CANTRELL, JUDGE