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Post MC, LLC v. GCA Concrete Design, LLC

Court of Appeals of Texas, Third District, Austin
Jul 30, 2024
No. 03-24-00461-CV (Tex. App. Jul. 30, 2024)

Opinion

03-24-00461-CV

07-30-2024

Post MC, LLC, Appellant v. GCA Concrete Design, LLC d/b/a Moderncrete Concrete Design; and Michael Brett Butler, Appellees


FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-002037, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Triana and Kelly

ORDER

PER CURIAM

In this interlocutory appeal from the trial court's order denying its motion to compel arbitration, appellant Post MC, LLC has filed an "Emergency Motion to Stay Trial Court Proceedings" and a motion to expedite the Court's consideration of the motion to stay. Post MC requests that we stay the underlying litigation during the pendency of this interlocutory appeal and requests that we expedite our consideration of the motion to stay because appellees have set two Rule 91a motions to dismiss on various claims for hearing in the trial court on August 12, 2024. Post MC argues in its motion and reply that continued litigation in the trial court will jeopardize its right to have these questions and other issues determined in arbitration, which is the basis for its interlocutory, accelerated appeal, and thus, a stay is required to maintain the status quo and to preserve the Court's jurisdiction to consider the merits of its interlocutory appeal. See In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d 185, 196 (Tex. 2007) (orig. proceeding) (explaining that in many circumstances "litigation must be abated to ensure that an issue two parties have agreed to arbitrate is not decided instead in collateral litigation").

Appellees GCA Concrete Design, LLC d/b/a Moderncrete Concrete Design; and Michael Brett Butler filed a response titled "Response in Opposition to Appellant's Motion to Expedite Consideration of Appellant's Emergency Motion to Stay Trial Court Proceedings," arguing that expedited consideration of the motion to stay is not required because the motions are not set to be heard until mid-August, but also arguing against the motion to stay. It subsequently filed a more detailed "Response in Opposition to Appellant's Motion to Stay Trial Court Proceedings" and a sur-reply to Post MC's reply. GCA Concrete and Butler assert that Post MC will not be harmed if the trial court is allowed to consider the pending Rule 91a motions and that the trial court's consideration of those motions would not impact this Court's analysis of the merits of the trial court's denial of Post MC's motion to compel arbitration. We note, however, that the motions at issue are related to the non-compete agreement that is part of the agreement containing the arbitration provision. GCA Concrete and Butler further argue the merits of Post MC's motion to compel arbitration, asserting that another party to the underlying suit, Daniel Bishop, a non-signatory to the arbitration provision, had the ability to compel arbitration on behalf of Post MC before Post MC was joined in the suit on May 17, 2024, and because he did not, Post MC has waived its right to arbitration.

We disagree that Post MC will not be harmed if the trial court is allowed to consider dismissing claims that Post MC asserts should be submitted to arbitration. See, e.g., Coinbase, Inc. v. Bielski, 599 U.S. 736, 741 (2023) (holding that federal district courts must stay their proceedings when interlocutory appeal of order denying arbitration is ongoing because "whether 'the litigation may go forward in the district court is precisely what the court of appeals must decide" (quoting Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F.3d 504, 506 (7th Cir. 1997)). In its motion to compel arbitration, Post MC moved to compel the arbitration of all claims asserted by or against GCA Concrete and Butler in the underlying lawsuit. The arbitration provision at issue provides for arbitration of "[a]ny controversy or claim arising out of this Agreement, or the breach thereof" in accordance with JAMS rules, and the applicable JAMS rule provides as follows:

Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.
See JAMS Rule 11(b) (located at https://www.jamsadr.com/rulescomprehensive-arbitration/) (last visited July 28, 2024). Until this Court has had the opportunity to consider the merits of the interlocutory appeal, the litigation before the Special Judge and in the trial court must be stayed in its entirety to avoid the risk that issues that the parties had agreed to arbitrate are instead decided in collateral litigation. See In re Merrill Lynch Tr. Co. FSB, 235 S.W.3d at 196; see also id. at 187 ("In considering referral to arbitration, the question is not which forum is quicker, cheaper, or more convenient, but which one the parties picked."). "Without such a stay, arbitration would no longer be the 'rapid, inexpensive alternative to traditional litigation' it was intended to be . . . ." Id. at 195 (quoting Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272- 73 (Tex. 1992) (original proceeding)).

We grant Post MC's motion to stay and stay the underlying litigation in the trial court until disposition of this appeal or further order from this Court. See TEX. R. APP. P. 29.3 (authorizing appellate court to make any temporary orders necessary to preserve parties' rights until disposition of interlocutory appeal); see also TEX. CIV. PRAC. & REM. CODE § 171.025(a) (requiring court to stay proceeding involving issue subject to arbitration if application for order for arbitration is made under Subchapter B of Texas Civil Practice & Remedies Code Chapter 171). We dismiss as moot Post MC's motion to expedite our consideration of the motion to stay.

It is ordered.


Summaries of

Post MC, LLC v. GCA Concrete Design, LLC

Court of Appeals of Texas, Third District, Austin
Jul 30, 2024
No. 03-24-00461-CV (Tex. App. Jul. 30, 2024)
Case details for

Post MC, LLC v. GCA Concrete Design, LLC

Case Details

Full title:Post MC, LLC, Appellant v. GCA Concrete Design, LLC d/b/a Moderncrete…

Court:Court of Appeals of Texas, Third District, Austin

Date published: Jul 30, 2024

Citations

No. 03-24-00461-CV (Tex. App. Jul. 30, 2024)

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