{ "id": 11079506, "name": "SHOLAR BUSINESS ASSOCIATES, INC., d/b/a VR BUSINESS BROKERS, Plaintiff v. LEWIS E. DAVIS, JR., and FITNESS TODAY OF WILMINGTON, INC., Defendants", "name_abbreviation": "Sholar Business Associates, Inc. v. Davis", "decision_date": "2000-06-06", "docket_number": "No. COA99-688", "first_page": "298", "last_page": "304", "citations": [ { "type": "official", "cite": "138 N.C. App. 298" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "456 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 640", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11920279 ], "year": 1995, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0640-01" ] }, { "cite": "407 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554636, 2555469, 2556685, 2556307, 2553854 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0505-05", "/nc/329/0505-01", "/nc/329/0505-02", "/nc/329/0505-03", "/nc/329/0505-04" ] }, { "cite": "381 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "325 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491380 ], "year": 1989, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0152-01" ] }, { "cite": "494 S.E.2d 613", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "616" }, { "page": "616" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653571 ], "year": 1998, "pin_cites": [ { "page": "256" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0252-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "499 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "804" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 488", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651129 ], "year": 1998, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0488-01" ] }, { "cite": "21 S.E. 679", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1895, "pin_cites": [ { "page": "682" }, { "page": "682" } ], "opinion_index": 0 }, { "cite": "116 N.C. 848", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 1895, "pin_cites": [ { "page": "858" }, { "page": "858" } ], "opinion_index": 0 }, { "cite": "293 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "796" }, { "page": "797" }, { "page": "797" } ], "opinion_index": 0 }, { "cite": "306 N.C. 518", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571437 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "523" }, { "page": "523" }, { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0518-01" ] }, { "cite": "455 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 412", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918653 ], "year": 1995, "pin_cites": [ { "page": "416" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0412-01" ] } ], "analysis": { "cardinality": 588, "char_count": 13588, "ocr_confidence": 0.769, "pagerank": { "raw": 2.6442459438211644e-07, "percentile": 0.8234097818058118 }, "sha256": "b5f0b07fd334367b56235687f337c1129e05ef766cd1d40872694ecc5defedba", "simhash": "1:cfaff2ae3e1dabf3", "word_count": 2172 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "SHOLAR BUSINESS ASSOCIATES, INC., d/b/a VR BUSINESS BROKERS, Plaintiff v. LEWIS E. DAVIS, JR., and FITNESS TODAY OF WILMINGTON, INC., Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nOn 11 July 1997, Sholar Business Associates, Inc., d/b/a VR Business Brokers (\u201cplaintiff\u2019), filed suit in Superior Court, Guilford County seeking to recover a sales commission from Lewis E. Davis, Jr. and Fitness Today of Wilmington, Inc. (\u201cdefendants\u201d). Plaintiff, a business broker, alleged that the parties entered into a Sole and Exclusive Listing Agreement (\u201cListing Agreement\u201d) and that defendants breached the Listing Agreement by unilaterally selling their business during the exclusive listing period. Plaintiff alleged claims for relief for breach of contract, fraudulent misrepresentation, conspiracy to defraud, intentional interference with contract, bulk transfer, fraudulent conveyance, breach of implied covenant of good faith and fair dealings, and unfair and deceptive trade practices.\nOn 6 August 1997, defendants filed a Motion to Compel Arbitration. Defendants\u2019 motion relied on language in the Listing Agreement which provided: \u201cAny controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association[.]\u201d On 9 September 1997, plaintiff signed a Stipulation to arbitrate which stated:\n1. All causes of action which are currently pending by and between these parties in this lawsuit shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.\n4. The parties agree that the Court will retain jurisdiction and may hear those matters, if any, which are not resolved through the arbitration process.\nPlaintiff filed a formal Demand for Arbitration with the American Arbitration Association (\u201cAAA\u201d).\nDuring arbitration, defendants asserted as a defense that they were not bound by the Listing Agreement in that the Listing Agreement was not intended to be \u201csole and exclusive.\u201d\nOn 10 February 1998, the arbitrator, John S. Harrison, Esquire, rendered a decision that plaintiff \u201cshall have and recover nothing on its claims\u201d against defendants. Plaintiff requested a written explanation of the arbitrator\u2019s decision. The arbitrator declined to make any findings of fact, stating:\n[T]he AAA Commercial Arbitration Rules do not require written findings of fact or any explanation of the rationale for an award. Furthermore, for an arbitrator to provide such information voluntarily can open the door for unhappy parties to attempt to challenge an award, thus defeating arbitration\u2019s goals of speed and finality.\nPlaintiff filed a Motion in the Cause and Application to Vacate Award of the Arbitrator. Defendants filed a Motion to Confirm Arbitration Award and for Sanctions against plaintiff and/or its attorney on the grounds that plaintiff\u2019s Motion to Vacate was groundless. In response, plaintiff filed a Motion in Opposition to defendants\u2019 Motion for Sanctions and a Motion for Attorney Fees.\nThe trial court granted defendants\u2019 Motion to Confirm Arbitration and denied plaintiff\u2019s Motion in the Cause and Application to Vacate Award of the Arbitrator. The motions of both parties for sanctions were denied. Plaintiff and defendants appeal.\nOn appeal, plaintiff argues that the trial court erred in denying its Motion to Vacate the Arbitration Award. By their only assignment of error, defendants argue that the trial court erred in denying their Motion for Sanctions.\nI. PLAINTIFF\u2019S ASSIGNMENTS OF ERROR\nSpecifically, plaintiff argues that the award of the arbitrator should be vacated because: (1) the trial court and the arbitrator allowed defendants to demand their contract right to arbitration and then to assert, once in arbitration, that defendants were not parties to the contract or that the contract was not legally binding on the parties; and (2) the arbitrator admitted parol evidence to contradict a written contract. We cannot agree.\nIn North Carolina, public policy favors arbitration as a method of resolving disputes. Miller v. Two State Construction Co., 118 N.C. App. 412, 416, 455 S.E.2d 678, 680 (1995). The advantages of arbitration include reduction of court congestion, speed, economy, finality, and an opportunity for the parties to choose the judges who resolve their disputes. Crutchley v. Crutchley, 306 N.C. 518, 523, 293 S.E.2d 793, 796 (1982).\nOur Supreme Court has recognized that arbitration also poses disadvantages in that parties to arbitration enjoy limited appellate review, and have no recourse when an arbitrator makes a mistake. Patton v. Garrett, 116 N.C. 848, 858, 21 S.E. 679, 682 (1895). Because an arbitrator is not bound by substantive law or rules of evidence, an award may not be vacated merely because the arbitrator erred as to law or fact. Crutchley, 306 N.C. at 523, 293 S.E.2d at 797. Where an arbitrator makes such a mistake, \u201cit is the misfortune of the party.\u201d Patton, 116 N.C. at 858, 21 S.E. at 682.\nAppellate review of an arbitration award is limited. A court may only vacate such an award for the reasons enumerated in North Carolina General Statutes section 1-567.13. Palmer v. Duke Power Co., 129 N.C. App. 488, 492, 499 S.E.2d 801, 804 (1998). Pursuant to section 1-567.13, an award of arbitrators shall be vacated where:\n(1) The award was procured by corruption, fraud or other undue means;\n(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;\n(3) The arbitrators exceeded their powers;\n(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy . . .; or\n(5) There was no arbitration agreement....\nN.C. Gen. Stat. \u00a7 1-567.13 (1999).\nIn the case sub judice, plaintiff does not argue that his rights were prejudiced under any of the grounds enumerated in section 1-567.13. Plaintiff does not allege that the arbitration award was tainted by corruption, partiality, or abuse of power. Instead, plaintiff contends that the arbitrator made mistakes of law by: (1) allowing defendants to assert that they were not bound by the contract; and (2) admitting parol evidence. Because statutory and case law have determined that an arbitrator is not bound by substantive law or rules of evidence, N.C.G.S. \u00a7 1-567.13; Crutchley, 306 N.C. at 523, 293 S.E.2d at 797, we hold that the trial court did not err in denying plaintiffs Motion to Vacate the Arbitration Award.\nBy its final assignment of error, plaintiff argues that the award of the arbitrator should be vacated because the arbitrator failed to rule on estoppel, election, and parol evidence issues, and failed to make findings of fact or conclusions of law. We cannot agree.\n\u201cThe interpretation of the terms of an arbitration agreement are governed by contract principles and parties may specify by contract the rules under which arbitration will be conducted.\u201d Trafalgar House Construction v. MSL Enterprises, Inc., 128 N.C. App. 252, 256, 494 S.E.2d 613, 616 (1998). It is incumbent on the parties to delineate the form of the arbitration order. See id. at 256-57, 494 S.E.2d at 616.\nIn the case at bar, plaintiff and defendant entered into the Listing Agreement which provided that \u201c[a]ny controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association^]\u201d Under AAA Commercial Arbitration Rule 31, \u201c[t]he arbitrator shall be the judge of the relevance and materiality of the evidence offered, and conformity to legal rules of evidence shall not be necessary.\u201d Thus, the parties by agreement determined the rules by which arbitration would be conducted. The AAA Commercial Arbitration Rules do not require findings of fact or conclusions of law. In fact, plaintiff drafted the Listing Agreement which mandated that the AAA\u2019s Commercial Arbitration Rules would control, and cannot be heard to complain of any perceived shortcoming of those Rules.\nFurthermore, we note that plaintiff has again failed to marshall any of the limited grounds upon which an arbitration award may be vacated. See N.C.G.S. \u00a7 1-567.13. Indeed, plaintiff does not cite any authority in support of its argument that an award of arbitrator should be vacated where the arbitrator refused to make findings of fact or conclusions of law. We hold that the trial court did not err in failing to vacate the award of arbitrator where the arbitrator failed to rule on estoppel, election, and parol evidence issues and failed to make findings of fact or conclusions of law.\nII. DEFENDANTS\u2019 ASSIGNMENT OF ERROR\nBy their only assignment of error, defendants argue that the trial court erred in denying their Motion for Sanctions in that plaintiffs Motion to Vacate the arbitration award was not warranted by existing law, was in conflict with existing law, and did not advance a good faith argument for the extension, modification, or reversal of .existing law. We cannot agree.\nRule 11(a) of the North Carolina Rules of Civil Procedure provides in pertinent part:\nThe signature of an attorney . . . constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction[.]\nN.C. Gen. Stat. \u00a7 1A-1, Rule 11(a) (1999).\nThe decision of the trial court to grant or deny a motion to impose sanctions is reviewable de novo as a legal issue. Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989), disc. review denied, 329 N.C. 505, 407 S.E.2d 552 (1991). The reviewing court must determine whether the findings of fact of the trial court are supported by sufficient evidence, whether the conclusions of law are supported by the findings of fact, and whether the conclusions of law support the judgment. Id. As a general rule, remand is necessary where a trial court fails to enter findings of fact and conclusions of law regarding a motion for sanctions pursuant to Rule 11. McClerin v. R-M Industries, Inc., 118 N.C. App. 640, 644, 456 S.E.2d 352, 355 (1995). \u201cHowever, remand is not necessary when there is no evidence in the record, considered in the light most favorable to the movant, which could support a legal conclusion that sanctions are proper.\u201d Id.\nIn the present case, the trial court did not make any findings of fact or conclusions of law in support of its denial of defendants\u2019 Motion for Sanctions. However, after reviewing the entire record, we find no evidence to support an award of sanctions on any basis asserted by defendants. Therefore, we conclude that the trial court did not err in denying defendants\u2019 Motion for Sanctions.\nFor the reasons stated herein, we hold that plaintiff received a hearing free from prejudicial error and that the trial court did not err in denying defendants\u2019 motion for sanctions. Therefore, we affirm the rulings of the trial court.\nAffirmed.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Harry G. Gordon for plaintiff-appellant/appellee.", "Tuggle, Duggins & Meschan, P.A., by Denis E. Jacobson and Leonard A. Colonna, for defendants-appellees/appellants." ], "corrections": "", "head_matter": "SHOLAR BUSINESS ASSOCIATES, INC., d/b/a VR BUSINESS BROKERS, Plaintiff v. LEWIS E. DAVIS, JR., and FITNESS TODAY OF WILMINGTON, INC., Defendants\nNo. COA99-688\n(Filed 6 June 2000)\n1. Arbitration\u2014 mistakes of law \u2014 motion to vacate denied\nThe trial court did not err by denying plaintiff\u2019s motion to vacate an arbitration award where plaintiff alleged that the arbitrator made mistakes of law but did not allege that the award was tainted by corruption, partiality, or abuse of power. An arbitrator is not bound by substantive law or rules of evidence.\n2. Arbitration\u2014 rules \u2014 specified by contract\nThe trial court did not err by failing to vacate an arbitration award where plaintiff alleged that the arbitrator failed to rule on estoppel, election, and parol evidence issues and failed to make findings or conclusions. The interpretation of the terms of an arbitration agreement is governed by contract principles and parties may specify by contract the rules under which arbitration will be conducted. Here, the parties entered into an agreement which provided for arbitration by the Commercial Arbitration Rules of the American Arbitration Association, which provide that the arbitrator is the judge of the relevance and materiality of the evidence, do not require conformity to rules of evidence, and do not require findings of fact or conclusions of law. Furthermore, plaintiff failed to marshall any of the limited grounds upon which an arbitration award may be vacated. N.C.G.S. \u00a7 1-567.13.\n3. Pleadings\u2014 Rule 11 sanctions \u2014 motion to vacate arbitration award\nThe trial court did not err by denying a motion for Rule 11(a) sanctions arising from a motion to vacate an arbitration award.\nAppeal by plaintiff and defendants from judgment entered 3 March 1999 by Judge Mark Klass in Superior Court, Guilford County. Heard in the Court of Appeals 14 March 2000.\nHarry G. Gordon for plaintiff-appellant/appellee.\nTuggle, Duggins & Meschan, P.A., by Denis E. Jacobson and Leonard A. Colonna, for defendants-appellees/appellants." }, "file_name": "0298-01", "first_page_order": 328, "last_page_order": 334 }