BARNHOUSE v. AMERICAN EXPRESS FIN. ADV

Arbitration and Mediation — denial of arbitration — initial finding that agreement existed — required

The trial court erred by denying defendant's motion to stay the proceeding pending arbitration in an action arising from the sale of stock where the court did not first determine whether an agreement to arbitrate existed.

Judge GREENE dissenting.

TIMMONS-GOODSON, Judge.

American Express Financial Advisors, Inc. and American Enterprise Investment Services, Inc. (collectively, "defendants") appeal an order by the trial court denying their motion to stay proceedings pending arbitration. For the reasons stated herein, we reverse the order and remand this case to the trial court.

The facts pertinent to the instant appeal are as follows: On 2 December 1999, Dan D. Barnhouse ("plaintiff") filed a complaint against defendants and Bank of America Corporation in Mecklenburg County Superior Court alleging negligence and breach of fiduciary duty in the sale of certain stock owned by plaintiff. Defendants thereafter filed a motion to stay further proceedings, alleging that plaintiff had agreed, upon opening his account with defendants, to submit to arbitration any dispute arising over his account. Plaintiff denied that such an agreement to arbitrate existed, and defendants' motion came before the trial court on 9 October 2000. After arguments by counsel, the trial court denied defendants' motion to stay proceedings, from which order defendants appeal.

The dispositive issue is whether the trial court properly denied defendants' motion to stay proceedings without first determining whether or not an agreement to arbitrate existed between the parties. Because we conclude that the court was required to first resolve the issue of whether or not an agreement to arbitrate existed before granting or denying defendants' motion, we reverse and remand the order of the court.

We note initially that the denial of a motion to compel arbitration, although interlocutory, is nevertheless immediately appealable, as it affects a substantial right. See Blow v. Shaughnessy, 68 N.C. App. 1, 12, 313 S.E.2d 868, 874, disc. review denied, 311 N.C. 751, 321 S.E.2d 127 (1984). Defendants' appeal is therefore properly before this Court.

Upon a motion seeking stay of a court proceeding on the grounds that the parties had previously agreed to arbitrate the controversy at issue and the opposing party's denial of the existence of an arbitration agreement, the trial court "shall proceed summarily" to determine whether or not an agreement to arbitrate exists between the parties. N.C. Gen. Stat. § 1-567.3(a) (2001). By its plain terms, the statute requires the court to summarily determine whether a valid arbitration agreement exists. See Routh v. Snap-On Tools Corp., 101 N.C. App. 703, 706, 400 S.E.2d 755, 757 (1991). Failure of the court to determine this issue, where properly raised by the parties, constitutes reversible error. See Burke v. Wilkins, 131 N.C. App. 687, 689, 507 S.E.2d 913, 914 (1998). In determining whether or not an agreement to arbitrate exists, the court may also properly resolve preliminary issues surrounding the agreement, such as whether or not the agreement was induced by fraud, see Henderson v. Herman, 104 N.C. App. 482, 486, 409 S.E.2d 739, 741 (1991), disc. review denied, 330 N.C. 851, 413 S.E.2d 551 (1992), or whether the doctrines of res judicata or waiver apply. See Cyclone Roofing Co. v. LaFave Co., 67 N.C. App. 278, 281-82, 312 S.E.2d 709, 711, reversed on other grounds, 312 N.C. 224, 321 S.E.2d 872 (1984). Where the trial court determines that the parties entered into an enforceable contract providing for arbitration, the trial court "shall order the parties to proceed to arbitration." N.C. Gen. Stat. § 1-567.3(b). Accordingly, where the court concludes that no agreement to arbitrate exists, the court will grant the moving party's motion to stay arbitration. See id.

In the instant case, there is no indication that the trial court made any determination regarding the existence of an arbitration agreement between the parties before denying defendants' motion to stay proceedings. The order denying defendants' motion to stay proceedings does not state upon what basis the court made its decision, and as such, this Court cannot properly review whether or not the court correctly denied defendants' motion. See CIT Grp./Sales Fin., Inc. v. Bray, 141 N.C. App. 542, 545, 539 S.E.2d 690, 692 (2000). Although it is possible to infer from the order denying defendants' motion that the trial court found that no arbitration agreement existed, other possibilities are equally likely. For instance, the trial court might have concluded that an arbitration agreement existed, but that the doctrine of equitable estoppel precluded enforcement of the agreement. It is also possible that the trial court made no determination on the validity of the agreement, but denied the motion on procedural grounds, for example. Because the trial court failed to determine whether or not an agreement to arbitrate existed between the parties, the trial court erred in denying defendants' motion to stay proceedings. See CIT Grp./Sales Fin., Inc., 141 N.C. App. at 545, 539 S.E.2d at 692; Burke, 131 N.C. App. at 689, 507 S.E.2d at 915 (both holding that the trial courts erred where they denied motions to compel arbitration and stay proceedings without first determining whether a valid agreement to arbitrate existed between the parties). We therefore reverse the order and remand to the trial court for a determination of whether or not there exists an agreement to arbitrate between the parties. The order of the trial court is therefore

Reversed and remanded.

Judge HUNTER concurs.

Judge GREENE dissents.