Greystone Multi-Family Builders, Inc. v. TES Electric, LP

ACCEPTED
01-15-00640-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/7/2015 12:18:33 AM
CHRISTOPHER PRINE
CLERK

Cause No. 01-15-00640-CV

FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
10/7/2015 12:18:33 AM
AT HOUSTON
CHRISTOPHER A. PRINE
Clerk

GREYSTONE MULTI-FAMILY BUILDERS, INC.,
Appellant,
V.

TES ELECTRIC LP,
Appellee.

BRIEF OF APPELLANT GREYSTONE MULTI-FAMILY BUILDERS, INC.

RICHARD B. PHILLIPS, JR. J. MICHAEL BELL
State Bar No. 24032833 State Bar No. 02079200
THOMPSON & KNIGHT LLP MEGAN H. SCHMID
One Arts Plaza State Bar No. 24074383
1722 Routh Street THOMPSON & KNIGHT LLP
Suite 1500 333 Clay Street
Dallas, Texas 75201 Suite 3300
Phone: 214-969-1700 Houston, Texas 77002
Fax: 214-969-1751 Phone: 713-654-8111
rich.phillips@tklaw.com Fax: 713-654-1871
michael.bell@tklaw.com
megan.schmid@tklaw.com

COUNSEL FOR APPELLANT
GREYSTONE MULTI-FAMILY BUILDERS, INC.

ORAL ARGUMENT
REQUESTED
 IDENTITY OF PARTIES AND COUNSEL
DEFENDANT/APPELLANT TRIAL COUNSEL
Greystone Multi-Family J. Michael Bell
Builders, Inc. Megan H. Schmid
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

APPELLATE COUNSEL
Richard B. Phillips, Jr.
THOMPSON & KNIGHT LLP
One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, Texas 75201
214-969-1700
214-969-1751
rich.phillips@tklaw.com
J. Michael Bell
Megan H. Schmid
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

-i-
PLAINTIFF/APPELLEE TRIAL AND APPELLATE COUNSEL
TES Electric LP Ashish Mahendru
Darren A. Braun
MAHENDRU, P.C.
639 Heights Boulevard
Houston, Texas 77007
Phone: 713-571-1519
Fax: 716-651-0776
amahendru@thelitigationgroup.com
dbraun@thelitigationgroup.com

-ii-
 TABLE OF CONTENTS
Page

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . x

Statement Regarding Record References . . . . . . . . . . . . . . . . . . x

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. The subcontract contains a binding
arbitration agreement. . . . . . . . . . . . . . . . . . . . . . . . . 4

A. The only reasonable construction of the
subcontract is that it gives Greystone the
right to decide whether a dispute will be
arbitrated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

-iii-
 Page

(1) Only Greystone’s construction gives effect
to all of the provisions in Section 10.1. . . . . . . . . . 7

(2) An arbitration provision that gives one party
the sole power to decide whether a claim should
be arbitrated is enforceable. . . . . . . . . . . . . . . . 11

B. TES’s other arguments about section 10.1
are unavailing. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

(1) TES cannot show that the agreement is
unconscionable. . . . . . . . . . . . . . . . . . . . . . . 15

(2) TES’s new ambiguity argument also fails. . . . . . . 20

2. TES’s claims are within the broad scope of
the arbitration agreement. . . . . . . . . . . . . . . . . . . . . . 22

A. The arbitration provision broadly applies
to all disputes, claims, or questions. . . . . . . . . . . . . 23

B. The arbitration provision applies to tort
claims that arose after the subcontract was
terminated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

-iv-
Appendices

A — Order Denying Greystone Multi-Family
Builders, Inc.’s Motion to Compel Arbitration
and Motion to Stay (CR 155) . . . . . . . . . . . . . . . Tab A

B — Excerpts from Subcontract Agreement
(CR 31-32, 42-43) . . . . . . . . . . . . . . . . . . . . . . Tab B

-v-
 INDEX OF AUTHORITIES
Page
CASES
950 Corbindale, L.P. v. Kotts Capital Holdings Ltd. P’ship,
316 S.W.3d 191 (Tex. App.—Houston [14th Dist.]
2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Anglo-Dutch Petroleum Int’l v. Greenberg Peden P.C.,
352 S.W.3d 445 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 21

Aspen Tech., Inc. v. Shasha,
253 S.W.3d 857 (Tex. App.—Houston [14th Dist.]
2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

AutoNation USA Corp. v. Leroy,
105 S.W.3d 190 (Tex. App.—Houston [14th Dist.]
2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6, 22

Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc.,
348 S.W.3d 894 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 8

Beckham v. William Bayley Co.,
655 F. Supp. 288 (N.D. Tex. 1987) . . . . . . . . . . . . . . . . . . . . 24

Belmont Constructors, Inc. v. Lyondell Petrochemical Co.,
896 S.W.2d 352 (Tex. App.—Houston [1st Dist.]
1995, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Cleveland Constr. Inc. v. Levco Constr. Inc.,
359 S.W.3d 843 (Tex. App.—Houston [1st Dist.]
2012, pet. dism’d by agr.) . . . . . . . . . . . . . . . . . 6, 11, 12, 13, 29

El Paso Field Servs., L.P. v. MasTec N. Am., Inc.,
389 S.W.3d 802 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . 21

-vi-
 Page

Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
348 S.W.3d 194 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 21

FD Frontier Drilling (Cyprus), Ltd. v. Didmon,
438 S.W.3d 688 (Tex. App.—Houston [1st Dist.]
2014, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 26, 28

Guggenheim Corp. Funding LLC v. Valerus Compression Servs., LP,
465 S.W.3d 673 (Tex. App.—Houston [1st Dist.]
2015, pet. filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Hemyari v. Stevens,
355 S.W.3d 623 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . 16

Henry v. Gonzalez,
18 S.W.3d 684 (Tex. App.—San Antonio 2000,
pet. dism’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

In re FirstMerit Bank,
52 S.W.3d 749 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . 14, 15

In re Halliburton,
80 S.W.3d 566 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 15

In re Hornbeck Offshore Corp.,
981 F.2d 752 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 24

In re Kellogg Brown & Root,
80 S.W.3d 611 (Tex. App.—Houston [1st Dist.]
2002, orig. proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

In re Merrill Lynch Trust Co. FSB,
235 S.W.3d 185, 202 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . 26

-vii-
 Page

In re PolyAmerica, L.P.,
262 S.W.3d 337 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . 18

In re Rubiola,
334 S.W.3d 220 (Tex. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 5

J.M. Davidson, Inc. v. Webster,
128 S.W.3d 223 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 7

Kline v. O’Quinn,
874 S.W.2d 776 (Tex. App.—Houston [14th Dist.]
1994, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Leyendecker Constr. Inc. v. Berlanga,
No. 04–13–00095–CV, 2013 WL 4009752
(Tex. App.—San Antonio Aug. 7, 2013, no pet.) . . . . . . . 11, 12, 13

Roehrs v. FSI Holdings, Inc.,
246 S.W.3d 796 (Tex. App.—Dallas 2008,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

RSUI Indem. Co. v. The Lynd Co.,
466 S.W.3d 113 (Tex. 2015) . . . . . . . . . . . . . . . . . . . . . . . . 25

Serv. Corp. Int’l v. Lopez,
162 S.W.3d 801 (Tex. App.—Corpus Christi 2005,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

The Rice Co. (Suisse), S.A. v. Precious Flowers, Ltd.,
523 F.3d 528 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 24, 25, 27

Travelers Indemnity Co. v. Texas Municipal League Joint Self-
Insurance Fund,
No. 01-08-00062-CV, 2008 WL 2756874
(Tex. App.—Houston [1st Dist.] July 17, 2008, no pet.) . . . . . . . 13

-viii-
 STATEMENT OF THE CASE

Nature of This is a dispute between a subcontractor and a
the Case: general contractor on a multi-family construction
project in Houston. Plaintiff/Appellee TES Electric
LP was an electrical subcontractor on the project.
(CR 31.) TES sued Defendant/Appellant Greystone
Multi-Family Builders, Inc. (the general contractor)
asserting breach-of-contract and various tort claims
allegedly arising from TES’s work under the
subcontract. (CR 3-14.)

Course of Greystone moved to compel arbitration based on an
Proceedings: arbitration provision in the parties’ contract. (CR
17-85.) TES opposed the motion. (CR 108-24.)

Trial Court’s Following a non-evidentiary hearing, the trial court
Disposition: (125th Judicial District Court, Hon. Kyle Carter,
presiding) denied the motion to compel arbitration.
(CR 155 (App. Tab A).) Greystone filed a timely
notice of interlocutory appeal. (CR 158-59.) Grey-
stone timely requested that the trial court file
findings of fact and conclusions of law (CR 156-57),
but no findings or conclusions were filed.

-ix-
 STATEMENT REGARDING ORAL ARGUMENT
Appellant Greystone Multi-Family Builders, Inc. respectfully

requests that the Court hear oral argument in this appeal because the

Court will benefit from the opportunity to question the parties’ about

their competing views of the arbitration provision.

STATEMENT REGARDING RECORD REFERENCES
The appellate record in this case includes a two-volume

reporter’s record, which will be cited as “[volume] RR [page],” and a

one volume “Corrected Original Clerk’s Record” (filed on August 18,

2015), which will be cited as ”CR [page].”

-x-
 ISSUE PRESENTED
Did the trial court err by refusing to compel
arbitration of TES Electric LP’s claims?

-xi-
 INTRODUCTION
Greystone Multi-Family Builders, Inc. contracted for the right to

decide whether any disputes arising between Greystone and TES

Electric LP would be submitted to arbitration. The arbitration

provision in the parties’ subcontract gives Greystone the right to

request arbitration of any dispute that arises. Moreover, if TES

desires to arbitrate, the provision gives Greystone the option to

consent to arbitration or require litigation. The trial court erred in

refusing to enforce the parties’ arbitration agreement. Therefore, this

Court should reverse the trial court’s order and direct the trial court

to compel arbitration and stay litigation proceedings until the

arbitration is completed.

STATEMENT OF FACTS
Greystone is the general contractor for a multi-family housing

project in Houston. (CR 29.) Greystone entered into a subcontract

agreement with TES under which TES was to provide electrical

services and related materials for the project. (Id.) After TES began

work on the project, there were multiple disputes about whether TES

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 1
was properly performing under the subcontract. (CR 19.) Eventually,

Greystone terminated the subcontract and hired a new subcontractor.

(Id.) TES has alleged that the owner of the new subcontractor is a

former TES employee. (CR 7.)

TES sued Greystone,1 asserting various breach-of-contract and

tort claims, all arising from the parties’ relationship under the

subcontract, including Greystone’s decision to terminate TES and

hire a new subcontractor. (CR 7-12.) TES has asserted claims for

breach of the subcontract. (CR 7-8.) TES has also asserted claims for

fraud and violation of the Texas Civil Theft Liability Act based on

Greystone’s alleged promise to pay for certain change orders. (CR 8,

10.) TES has also sued its former employees for tortious interference,

breach of fiduciary duty, unfair competition, and theft of trade

secrets. (CR 9-11.) TES claims that Greystone conspired with the

former employees in these actions. (CR 11.) Finally, TES seeks to

foreclose on alleged materialman’s liens. (CR 12.) Greystone disputes

all of TES’s claims. (CR 15.)

1 Greystone disputes TES’s allegations, but the merits of TES’s
claims are beyond the scope of this appeal.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 2
 Greystone invoked the arbitration provision in the subcontract

and moved to compel arbitration of all of TES’s claims. (CR 17-28.)

TES opposed the motion (CR 108-23), and the trial court denied it.

(CR 155 (App. Tab A).) Greystone filed a request for findings of fact

and conclusions of law, but the trial court did not file any findings or

conclusions. (CR 156-57.) Greystone filed a timely notice of

interlocutory appeal to seek review of the trial court’s refusal to

compel arbitration. (CR 158-59.) Greystone then filed a motion to stay

the trial proceedings pending this appeal, which the trial court also

denied. (CR 155).

SUMMARY OF THE ARGUMENT
The trial court erred in refusing to compel arbitration (and to

stay the trial proceedings) because the parties’ agreement contains a

binding arbitration clause. The clause gives Greystone the right to

either request arbitration if TES initiates litigation or consent to a

request for arbitration made by TES. This construction of the

arbitration provision is the only one that gives meaning to all of the

provisions of the agreement. TES’s attempt to limit the provision to

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 3
cases in which TES first requests arbitration ignores an entire

sentence of the agreement.

TES’s arguments against the enforceability of the agreement are

also misplaced. TES has not (and cannot) show that the agreement is

unconscionable by pointing to an obvious typographical error in the

agreement. The Court should also reject TES’s new argument that the

agreement is ambiguous because it was not raised below and because

it is legally unsupportable.

Moreover, the arbitration provision is broad enough to

encompass all of TES’s claims. The provision requires arbitration of

“all disputes, claims or questions,” which makes it broad enough to

encompass any dispute, not just contractual disputes. Because all of

TES’s claims are related to the subcontract, they must be submitted to

arbitration.

ARGUMENT AND AUTHORITIES
1. The subcontract contains a binding arbitration
agreement.
There is no dispute that the Federal Arbitration Act controls

whether arbitration should be compelled here. The arbitration

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 4
provision specifically provides that it “shall be governed by the

Federal Arbitration Act.” (CR 42 (App. Tab B).) The Texas Supreme

Court has held that the FAA applies when the parties expressly agree

to arbitrate under the FAA. See In re Rubiola, 334 S.W.3d 220, 223 (Tex.

2011) (“Parties may also expressly agree to arbitrate under the FAA.”)

When the parties specifically agree to be subject to the FAA, it applies

without regard to whether the transaction involves or affects

interstate commerce. See In re Kellogg Brown & Root, 80 S.W.3d 611,

617 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding) (“[W]hen,

as here, the parties agree to arbitrate under the FAA, they are not

required to establish that the transaction at issue involves or affects

interstate commerce.”). Moreover, in the trial court, TES agreed that

the FAA applies. (CR 110-11.)

When the FAA applies, a motion to compel arbitration must be

granted if (1) the agreement is valid and (2) the claims at issue are

within the scope of the arbitration agreement. See, e.g., Aspen Tech.,

Inc. v. Shasha, 253 S.W.3d 857, 865-66 (Tex. App.—Houston [14th

Dist.] 2003, no pet.); AutoNation USA Corp. v. Leroy, 105 S.W.3d 190,

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 5
195 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (“Once the party

seeking arbitration establishes that an agreement exists under the

FAA and that the claims raised are within the agreement’s scope, the

trial court has no discretion but to compel arbitration.”).

In reviewing a trial court’s decision on a motion to compel

arbitration under the FAA, this Court defers to the trial court’s

factual determinations and reviews the trial court’s legal

determinations de novo. See Cleveland Constr. Inc. v. Levco Constr. Inc.,

359 S.W.3d 843, 851-52 (Tex. App.—Houston [1st Dist.] 2012, pet.

dism’d by agr.). Because there are no fact disputes in this appeal, the

standard of review is de novo.

A. The only reasonable construction of the subcontract is
that it gives Greystone the right to decide whether a
dispute will be arbitrated.

Section 10.1 of the subcontract provides:

With the consent of the General Contractor, all disputes,
claims or questions not resolved informally are subject to
arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Associa-
tion. If General Contractor requests that any particular
dispute, claim or question should be arbitrated, then
arbitration shall be effected as provided hereinafter, and
the decision of such arbitration shall be benign [sic] on all

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 6
 parties. If, however, General Contractor elects not to
consent to arbitration, then either or both parties may
resort to an appropriate judicial action … .

(CR 42 (App. Tab B).) The parties’ dispute here centers on the fact

that the first and third sentences of Section 10.1 provide that

Greystone can “consent” to arbitration and the second sentence

provides that Greystone can “request” arbitration. Greystone argues

that the second sentence controls here because Greystone requested

that TES’s claims be arbitrated. (CR 23.) TES relies on the first and

third sentences to argue that this is a permissive arbitration clause

and that arbitration can be compelled only if TES first requests it and

Greystone then consents. (CR 113-14.)

(1) Only Greystone’s construction gives effect to all of
the provisions in Section 10.1.

The issue is which party’s construction properly gives meaning

to all of the terms of the agreement. See, e.g., J.M. Davidson, Inc. v.

Webster, 128 S.W.3d 223, 229 (Tex. 2003) (holding that in construing

an arbitration agreement a court “must examine and consider the

entire writing in an effort to harmonize and give effect to all the

provisions of the contract so that none will be rendered

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 7
meaningless”); see also Guggenheim Corp. Funding LLC v. Valerus

Compression Servs., LP, 465 S.W.3d 673, 681 (Tex. App.—Houston [1st

Dist.] 2015, pet. filed). Because the construction of an unambiguous

contract2 is a question of law, the Court should determine the

meaning of Section 10.1 de novo. E.g., Basic Capital Mgmt., Inc. v.

Dynex Commercial, Inc., 348 S.W.3d 894, 900 (Tex. 2011) (“[W]hen a

contract is not ambiguous, the construction of the written instrument

is a question of law for the court.” (internal citation omitted)).

By filing the motion to compel arbitration, Greystone exercised

its right as General Contractor to request that TES’s claims be

arbitrated. (CR 42 (“If General Contractor requests that any particular

dispute, claim or question should be arbitrated, then arbitration shall

be effected as provided hereinafter.” (emphasis added)) (App. Tab B).)

Under the terms of the arbitration agreement, that request triggered a

binding obligation to arbitrate the claims. (Id.). To give effect to the

second sentence, Section 10.1 must be construed to give Greystone

2 As discussed in Section 1.(B).(2), below, despite statements that
TES has made in filings in this Court, neither party argued below that the
subcontract is ambiguous.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 8
the right to compel arbitration of any claim filed by TES that falls

within the scope of the arbitration agreement.3

To avoid this result, TES argued in the trial court that the

arbitration provision should be construed to require arbitration only

if Greystone consents to a request first made by TES. (CR 116.) In

other words, TES argues that because the first and third sentences of

Section 10.1 speak to Greystone’s “consent” to arbitration, “TES must

first request arbitration” before Greystone can consent and then

proceed to arbitration. (Id.)4

Contrary to TES’s argument, the only reasonable construction of

Section 10.1 that gives effect to all of its provisions is the construction

urged by Greystone. TES’s construction disregards Greystone’s right

3 As discussed in Section 2, below, the arbitration provision is a
broad agreement that covers all claims related to the subcontract. Thus, all
of TES’s claims fall within the scope of the arbitration provision.
4 TES also argued that the heading for Section 10.1 (“Arbitration by
General Contractor Consent”) supports TES’s construction. (CR 114.) But
the subcontract specifically provides that “[t]he captions appearing
throughout this Subcontract … are descriptive only and for convenience,
and in no way whatsoever define, limit or describe the scope or intent of
this Subcontract, or in any way effect the Subcontract.” (CR 32 (App. Tab
B).) Therefore, the heading for Section 10.1 cannot change the construction
of the arbitration provision.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 9
in the second sentence to request arbitration of “any” dispute, claim,

or question. Section 10.1 is written to account for the various ways in

which formal dispute resolution might be initiated. If TES attempts to

initiate arbitration, then the first and third sentences of Section 10.1

give Greystone the right to decide whether to consent to arbitration

or to withhold consent and require litigation instead. And if TES

initiates litigation, then the second sentence of Section 10.1 gives

Greystone the right to require that the claim be arbitrated. In either

scenario, Greystone has the right to decide whether the particular

claim, dispute, or question will be decided in arbitration or in

litigation. This construction gives meaning to all three sentences in

Section 10.1.

In the trial court, TES attempted to bolster its construction of

Section 10.1 by pointing out that if a payment dispute is arbitrated,

TES has the right to suspend performance during the arbitration. (CR

116.) TES reasoned that “Greystone would not want to give TES the

unilateral right to arbitrate a payment dispute and thereby suspend

its performance in middle of its contractual performance.” (Id.)

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 10
Greystone agrees with TES that Greystone would want to have the

last word about whether a dispute will be arbitrated so that TES

cannot create a right to suspend performance just by initiating an

arbitration proceeding. But this does not make TES’s interpretation

reasonable. Greystone’s construction accounts for this feature of the

subcontract, because in Greystone’s construction, the decision to

arbitrate rests solely with Greystone, regardless of how the dispute is

initiated.

(2) An arbitration provision that gives one party the
sole power to decide whether a claim should be
arbitrated is enforceable.

Texas courts have enforced arbitration agreements that give one

of the parties the sole power to decide whether a claim will be

arbitrated or litigated. See Cleveland Constr. Inc. v. Levco Constr. Inc.,

359 S.W.3d 843, 853-54 (Tex. App.—Houston [1st Dist.] 2012, pet.

dism’d by agr.); Leyendecker Constr. Inc. v. Berlanga, No. 04–13–00095–

CV, 2013 WL 4009752 at *2 (Tex. App.—San Antonio Aug. 7, 2013, no

pet.). In Cleveland Construction, the arbitration provision gave one

party (the general contractor) the sole option to decide that a claim

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 11
should be arbitrated. Cleveland Constr., 359 S.W.3d at 846. This Court

found that the arbitration agreement was enforceable because the

consideration for the agreement to arbitrate at the demand of the

general contractor was found in the other promises in the

subcontract. Id. at 853-54.

The arbitration provision in Leyendecker Construction similarly

gave one party the sole option to decide that a claim should be

arbitrated. Leyendecker Constr., 2013 WL 4009752 at *2. And the court

in that case also found that the agreement was enforceable. Id.

The language in the arbitration provisions in Cleveland

Construction and Leyendecker Construction is not the same as the

language here, but the effect is the same. Just as in those cases, the

language here gives Greystone the sole option to decide whether a

claim should be arbitrated. Greystone can either consent to a request

by TES to arbitrate or request arbitration if TES initiates litigation.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 12
Just as in Cleveland Construction and Leyendecker Construction, the

provision here should be enforced.5

To argue that the agreement is permissive rather than binding,

TES relied in the trial court on Travelers Indemnity Co. v. Texas

Municipal League Joint Self-Insurance Fund, No. 01-08-00062-CV, 2008

WL 2756874 at *3 (Tex. App.—Houston [1st Dist.] July 17, 2008, no

pet.). (CR 115.) But the arbitration provision in that case was

materially different from the provision here. In Travelers, the

provision specifically gave both parties the right to accept or reject a

request for arbitration sent by the other party. Id. at *1. Here, in

contrast, only Greystone is given the right to reject a request for

arbitration. Therefore, the arbitration provision here is not

permissive.

In sum, to give effect to all of the sentences in Section 10.1, it

must be construed to give Greystone the right to request arbitration

5 At the hearing on Greystone’s motion to compel, TES’s counsel
agreed that an arbitration provision that gives one party the sole right to
decide whether a dispute will be arbitrated is valid. (2 RR 12.) TES instead
argued against Greystone’s construction of the provision here. (Id.) For the
reasons set out in Section 1.(A).(1), TES’s argument should be rejected.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 13
when TES initiates litigation. This construction does not negate the

other sentences, which are operative only when TES initiates

arbitration rather than litigation, and Greystone has the right to

consent. TES’s proposed construction, on the other hand, ignores

Greystone’s right to request arbitration that is provided in the second

sentence of Section 10.1. To the extent the trial court concluded that

Section 10.1 is not a binding arbitration agreement or that Greystone

does not have the right to compel arbitration when TES initiates

litigation, the trial court erred.

B. TES’s other arguments about section 10.1 are
unavailing.

TES also argued below that Greystone’s construction of Section

10.1 would make the arbitration provision unconscionable. (CR 117.)

But TES did not (and cannot) carry its burden on this argument. See

In re FirstMerit Bank, 52 S.W.3d 749, 756 (Tex. 2001) (“[S]ince the law

favors arbitration, the burden of proving a defense to arbitration is on

the party opposing arbitration.”). TES has also suggested that the

arbitration agreement is ambiguous. That argument fails because it

was not raised below and because TES is simply wrong.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 14
 (1) TES cannot show that the agreement is
unconscionable.

“Unconscionability includes two aspects: (1) procedural

unconscionability, which refers to the circumstances surrounding the

adoption of the arbitration provision, and (2) substantive

unconscionability, which refers to the fairness of the arbitration

provision itself.” In re Halliburton, 80 S.W.3d 566, 571 (Tex. 2002). The

party asserting unconscionability bears the burden to prove it. In re

FirstMerit Bank, 52 S.W.3d at 756.

TES argues that the arbitration agreement is unconscionable

because it provides that “the decision of such arbitration shall be

benign [sic] on all parties.” (CR 118.) To make this argument, TES

asserts that if the award must be “benign,” the arbitrator cannot

award any damages. (CR 119.) And according to TES, if the arbitrator

cannot award any damages, then the arbitration provision is

unconscionable because it strips away TES’s substantive rights. (CR

119-20.)

This argument must fail for at least four reasons. First, TES

ignores the fact that the provision states that the award must be

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 15
“benign on both parties.” Therefore, even if TES were right about the

meaning of the provision (which it is not), it would prevent an award

of damages to either party. Since it would impact both parties

equally, it is not clear how the provision would be unconscionable.

Second, TES’s construction would create an absurd result. If

arbitration actually resolves any “dispute, claim or question” it will

be impossible for the decision to be “benign on both parties.” If there

is a dispute, claim or question, and it is resolved, then one party will

prevail and the other will not. It is absurd to suggest that the parties

created an arbitration procedure and then made it worthless by

requiring that the decision be “benign on both parties.” See Hemyari v.

Stevens, 355 S.W.3d 623, 626 (Tex. 2011) (“Furthermore, under general

rules of construction we avoid strictly construing an instrument’s

language if it would lead to absurd results.”).

Third, the remainder of Article 10 makes clear that “benign” is

simply a typographical error. Section 10.4 gives the arbitrator the

power to “award to any party whose claim(s) are sustained such

sums as the arbitrator (or majority of them) shall deem proper to

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 16
compensate such party for the time and expense of the arbitration

proceeding, including any and all reasonable attorneys’ fees,

professional fees, and costs expended.” (CR 42 (App. Tab B).) This

power to award fees and costs is wholly incompatible with TES’s

suggestion that the arbitration award must be “benign.”

Moreover, Section 10.2.1 provides that the arbitration award

“shall be final, and judgment may be entered upon and in accordance

with applicable law.” (Id.) Again, this provision is incompatible with

the suggestion that the arbitration award must be “benign.” A benign

arbitration award would not provide any basis for a judgment. This

provision also indicates that the word “benign” in Section 10.1 was

likely intended to be “binding.”6

Fourth, even if the Court is not willing to look to other

provisions to determine the meaning of “benign,” it should refuse to

enforce the clause as written. As discussed above, no arbitration

6 Because TES’s concern was that the word “benign” would
prevent an award in favor of TES (CR 119-20), Greystone stipulated in the
trial court that the word “benign” was supposed to be “binding.” (CR 148.)
Essentially, Greystone agreed that the arbitrators have the power to enter
an award against Greystone.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 17
award can be “benign” on both parties. Moreover, the instruction is

inconsistent with the rest of Article 10. Therefore, the court should

disregard the clause as unenforceable. Section 1.7 of the subcontract

provides that

Should any term … of this Subcontract, or any application
thereof be held by a court of competent jurisdiction to be
invalid, void, or unenforceable, all provisions, covenants
or conditions of this Subcontract, and all interpretations
thereof, not held invalid, void or unenforceable shall
continue in full force and effect and shall in no way be
affected, impaired, or invalidated thereby.

(CR 31 (App. Tab B).) Thus, this Court can disregard the

unenforceable and absurd clause requiring that the award be

“benign” and enforce the remainder of the arbitration provision. See

In re PolyAmerica, L.P., 262 S.W.3d 337, 360 (Tex. 2008) (“An illegal or

unconscionable provision of a contract may generally be severed so

long as it does not constitute the essential purpose of the

agreement.”).

Even without the clause that the award should be “benign” on all

parties, Article 10 of the subcontract is a valid arbitration provision.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 18
As discussed above, Section 10.1 is a binding arbitration provision.

Deleting the “benign” clause would not change that meaning:

With the consent of the General Contractor, all disputes,
claims or questions not resolved informally are subject to
arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Associa-
tion. If General Contractor requests that any particular
dispute, claim or question should be arbitrated, then
arbitration shall be effected as provided hereinafter
[“benign” clause deleted]. If, however, General
Contractor elects not to consent to arbitration, then either
or both parties may resort to an appropriate judicial
action … .

(CR 42 (App. Tab B).) Moreover, as discussed above, the remainder of

Article 10 provides that the arbitration decision will be “final” and

that judgment may be entered on the decision. (Id.)

Additionally, the agreement specifically provides that the

arbitration will be conducted in accordance with the Construction

Industry Arbitration Rules of the American Arbitration Association.

Those rules provide that “[p]arties to these Rules shall be deemed to

have consented that judgment upon the arbitration award may be

entered in any federal or state court having jurisdiction thereof.”

American Arbitration Association, Construction Industry Arbitration

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 19
Rule 54(c); see Roehrs v. FSI Holdings, Inc., 246 S.W.3d 796, 807-08 (Tex.

App.—Dallas 2008, pet. denied) (looking to AAA rules adopted in

parties’ arbitration agreement to determine full scope of the

agreement). Thus, if the Court disregards the “benign” clause, the

remainder of Article 10 is still a binding arbitration provision.

(2) TES’s new ambiguity argument also fails.

In response to Greystone’s motion for a stay in this Court, TES

asserted that “TES argued that the arbitration clause was, at the very

least, patently ambiguous and therefore non-mandatory as a matter

of law. The trial court agreed … .” (Appellee TES Electric, LP’s

Response to Appellant Greystone Multi-Family Builders, Inc.’s

Motion to Stay Trial Proceedings Pending Interlocutory Appeal at 3.)

Therefore, it seems likely that TES will make a similar argument in its

response brief. This argument fails for two reasons. First, TES did not

argue ambiguity below. Second, TES cannot show that the arbitration

provision is ambiguous.

In response to Greystone’s motion to compel arbitration, TES did

not argue that the provision is ambiguous. Rather, TES argued that it

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 20
is not a binding arbitration provision. (CR 112.)7 As discussed above,

TES argued that it is instead a permissive arbitration provision. (Id.)

While TES did assert that an arbitration agreement should be

unambiguous (CR 113), it never claimed that the provision here was

ambiguous. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d

194, 214 (Tex. 2011) (“Where an ambiguity has not been raised by the

parties, the interpretation of a contract is a question of law.”)

But even if TES had raised this argument below, it would still

fail. Whether a contract is ambiguous is a question of law. E.g., Anglo-

Dutch Petroleum Int’l v. Greenberg Peden P.C., 352 S.W.3d 445, 449 (Tex.

2011). And a contract is not ambiguous if it “can be given a certain or

definite legal meaning or interpretation.” El Paso Field Servs., L.P. v.

MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012). As discussed in

section 1.A.(1) above, the agreement can be given a definite

interpretation. TES’s suggested construction is not reasonable

because it ignores the second sentence of section 10.1. Therefore, if

7 At the hearing, TES did not argue that the clause is ambiguous.
To the contrary, TES argued that that its construction was the only
reasonable construction of the provision. (2 RR 14.)

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 21
the trial court refused to enforce the agreement because the court

found it was ambiguous, the trial court erred.

2. TES’s claims are within the broad scope of the
arbitration agreement.
Because there is a binding arbitration agreement, the trial court

erred in refusing to compel arbitration if TES’s claims fall within the

scope of the parties’ agreement. See AutoNation USA Corp. v. Leroy,

105 S.W.3d 190, 195 (Tex. App.—Houston [14th Dist.] 2003, no pet.)

(“Once the party seeking arbitration establishes that an agreement

exists under the FAA and that the claims raised are within the

agreement’s scope, the trial court has no discretion but to compel

arbitration.”). In the trial court, TES argued that the arbitration

provision is narrow and that TES’s claims do not fall within its scope.

(CR 120.) TES also argued that the arbitration provision does not

apply to claims that arose after the subcontract was terminated. To

the extent the trial court agreed with either of these arguments, the

trial court erred.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 22
 A. The arbitration provision broadly applies to all
disputes, claims, or questions.

Although the language of the arbitration provision here is not

the same as other broad arbitration provisions, it does refer to

arbitration of “all disputes, claims or questions not resolved

informally.” (CR 42 (App. Tab B).) The reference to “all disputes,

claims or questions” makes this a broad arbitration provision. See FD

Frontier Drilling (Cyprus), Ltd. v. Didmon, 438 S.W.3d 688, 695 (Tex.

App.—Houston [1st Dist.] 2014, pet. denied) (“Broad arbitration

clauses…are not limited to claims that literally ‘arise under the

contract,’ but rather embrace all disputes between the parties having a

significant relationship to the contract regardless of the label attached

to the dispute.” (emphasis added)). All of TES’s claims here either

arise under or are related to the subcontract. Therefore, TES’s claims

are within the scope of the arbitration provision.

TES argues that the failure to use a “standard” broad arbitration

clause means that the provision is narrow and limited to claims that

arise under the contract. (CR 121.) This argument fails for at least

three reasons. First, the cases on which TES relies refer to “standard”

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 23
language or a variation of standard phrases. See Beckham v. William

Bayley Co., 655 F. Supp. 288, 291 (N.D. Tex. 1987). The phrase “all

disputes, claims or questions” is, at a minimum, a variation of the

standard phrase “[a]ny controversy or claim arising out of or relating

to this contract.” Id. Moreover, the use of the word “all” clearly

indicates an intent that the provision apply broadly. See In re Hornbeck

Offshore Corp., 981 F.2d 752, 755 (5th Cir. 1993) (concluding that a

provision requiring arbitration of “any dispute” between the parties

is a broad provision).

Second, the cases on which TES relies merely state that failure to

use “standard” language may indicate an intent that the clause be

limited to claims arising under the contract. See Belmont Constructors,

Inc. v. Lyondell Petrochemical Co., 896 S.W.2d 352, 358 (Tex. App.—

Houston [1st Dist.] 1995, no pet.). Moreover, in Belmont, the issue was

whether the provision was a binding arbitration agreement, not

whether it was a broad provision or a narrow one. Id.

TES also relied on the Fifth Circuit’s decision in The Rice Co.

(Suisse), S.A. v. Precious Flowers, Ltd., 523 F.3d 528, 536 (5th Cir. 2008),

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 24
for the proposition that a clause that required arbitration of “any

dispute” was not a broad arbitration provision. (CR 121.) But the

issue in The Rice Co. was not whether the clause was broad enough to

encompass certain claims, but whether it was broad enough to

encompass certain parties. The full quote from the Fifth Circuit’s

opinion is:

The New York arbitration clause is not broad, as it
provides “[t]hat should any dispute arise between Owners
and Charterers, the matter shall be referred to three
persons at New York.”

523 F.3d at 536 (emphasis in original). The issue was whether this

provision required arbitration of a dispute between parties other than

the Owner and the Charterer. Id. Thus, The Rice Co. cannot aid TES’s

arguments.

Third, TES’s argument would replace proper contract

construction with a search for “magic words.” The question for this

Court is the meaning of the words that the parties chose to include in

the subcontract. E.g., RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113,

118 (Tex. 2015) (“When construing a contract, our primary concern is

to ascertain the intentions of the parties as expressed in the

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 25
document. We begin our analysis with the language of the contract

because it is the best representation of what the parties mutually

intended.” (internal citations omitted)). Those words broadly require

arbitration of “all disputes, claims, or questions.” (CR 42 (App. Tab

B).) And they are similar to other arbitration provisions that have

been recognized as “broad:”

 In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185, 202 (Tex.
2007) (finding that an arbitration clause was broad because
it required arbitration of “all controversies which may arise
between us”)

 950 Corbindale, L.P. v. Kotts Capital Holdings Ltd. P’ship, 316
S.W.3d 191, 195 (Tex. App.—Houston [14th Dist.] 2010, no
pet.) (noting that “any dispute arising between the parties”
is a broad arbitration provision)

 FD Frontier Drilling, 438 S.W.3d at 695 (“Generally, when
an arbitration provision uses the language ‘any dispute,’ it
is considered broad.”)

 Serv. Corp. Int’l v. Lopez, 162 S.W.3d 801, 811 (Tex. App.—
Corpus Christi 2005, no pet.) (finding that “any claim you
may have against the seller shall be resolved by
arbitration” is a broad arbitration provision)

 Kline v. O’Quinn, 874 S.W.2d 776, 782 (Tex. App.—Houston
[14th Dist.] 1994, writ denied) (holding that the phrase “a
dispute that arises among the parties,” in the absence of
limiting language is a broad arbitration provision)

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 26
 Nothing in the language of Section 10.1 indicates an intent to

limit the disputes, claims, or questions to those “arising under” the

subcontract. To find such an intent simply because the parties did not

use “standard” language would improperly elevate form over

substance.

In fact, The Rice Co., a case on which TES relies, specifically holds

that “[s]pecific words or phrases alone may not be determinative.”

523 F.3d at 536. There is no indication in the language here to limit

the arbitration provision to certain types of claims. Id. (holding that

“words of limitations would indicate a narrower clause”).

Therefore, TES’s authorities do not support its argument that the

failure to use “standard” language automatically means that the

arbitration provision is narrow. Without limitation, Section 10.1

requires arbitration (at Greystone’s request or with Greystone’s

consent) of “all disputes, claims, or questions.”8 Because the

8 In the trial court, TES also selectively quoted from Section 10.1 to
argue that it applies only to “particular dispute[s], claim[s], or
question[s].” (CR 121.) But the quoted language is not a limitation on the
types of disputes that must be arbitrated. Rather, it refers to Greystone’s
right to chose which disputes are arbitrated. (CR 42 (App. Tab B).)

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 27
arbitration provision is broad, it encompasses all claims that relate to

the subcontract, regardless of whether they sound in contract or in

tort. See FD Frontier Drilling, 438 S.W.3d at 695 (holding that broad

arbitration clause encompassed tort claims).

Here, all of TES’s claims are related to the subcontract. None of

the claims could arise in the absence of the subcontract agreement

between Greystone and TES. See id. The fraud claims and unfair

competition claims allegedly arise from the parties’ conduct related

to the subcontract. (CR 8.) The Theft Liability Act claim is based on

the allegation that Greystone induced TES to continue to provide

services under the subcontract. (CR 11.) TES’s declaratory judgment

claim seeks a declaration about TES’s rights under the subcontract.

(CR 11.) The claims against TES’s former employees (which TES

alleges against Greystone through its conspiracy claim) are based on

the employees’ actions in connection with work on the subcontract.

(CR 9-11.) And TES’s attempt to foreclose alleged materialman’s liens

is related to performance of the subcontract. (CR 12.) Therefore, the

arbitration provision applies to all of the claims in TES’s petition.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 28
 B. The arbitration provision applies to tort claims that
arose after the subcontract was terminated.

TES also argued below (without citing any authority) that the

arbitration provision did not apply to tort claims that arose after the

subcontract was terminated. (CR 122.) But Texas courts have held

that an arbitration provision in a contract survives the termination of

that contract, even if the contract does not have a savings clause. See

Cleveland Constr. 359 S.W.3d at 854 (“[A]n arbitration agreement

contained within a contract survives the termination or repudiation

of the contract as a whole.” (quoting Henry v. Gonzalez, 18 S.W.3d 684,

690 (Tex. App.—San Antonio 2000, pet. dism’d)).) Therefore, if the

arbitration provision is broad enough to encompass TES’s tort claims

(which it is), it encompasses all of the tort claims, including those that

allegedly arose after the subcontract was terminated.

CONCLUSION AND PRAYER
The only reasonable reading of the arbitration provision in the

parties subcontract agreement is that Greystone has the right to

decide whether a claim should be arbitrated. If TES initiates

arbitration, Greystone must consent. If TES initiates litigation,

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 29
Greystone can request arbitration instead. TES’s arguments that there

is no enforceable, binding arbitration provision are unavailing.

Moreover, although the provision does not use typical broad

language, it is a broad arbitration provision. It expressly provides

that “all” disputes that are not resolved informally are subject to

arbitration. Thus, the clause is broad enough to encompass TES’s

claims here.

Therefore, Greystone respectfully requests that the Court reverse

the trial court’s order denying Greystone’s motion to compel

arbitration. The Court should also enter judgment that the arbitration

provision is enforceable, that TES’s claims are within the scope of the

arbitration provision, and that TES is required to arbitrate. The Court

should therefore direct the trial court to compel arbitration and to

stay the trial proceedings pending the results of the arbitration.

Greystone further requests general relief.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 30
 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.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 31
 CERTIFICATE OF COMPLIANCE
This brief was prepared using Microsoft Word 2010 in Book
Antiqua font. The font size in the text is 14-point. The font size in the
footnotes is 13-point. This brief contains 5,631 words, not counting
the sections excluded by TEX. R. APP. P. 9.4(i)(1).

/s/ Richard B. Phillips, Jr.
Richard B. Phillips, Jr.

CERTIFICATE OF SERVICE
On this 6th day of October, 2015, a true and correct copy of the
foregoing brief 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.

BRIEF OF APPELLANT GREYSTONE
MULTI-FAMILY BUILDERS, INC. — PAGE 32
TAB
A
155
TAB
B
31
32
42
43