{ "id": 9441605, "name": "KAY SMITH, Plaintiff v. YOUNG MOVING AND STORAGE, INC., Defendant", "name_abbreviation": "Smith v. Young Moving & Storage, Inc.", "decision_date": "2000-12-29", "docket_number": "No. COA99-1378", "first_page": "469", "last_page": "475", "citations": [ { "type": "official", "cite": "141 N.C. App. 469" } ], "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": "342 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "854" }, { "page": "854-55" } ], "opinion_index": 0 }, { "cite": "316 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4699748 ], "year": 1986, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0543-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.13", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "329 S.E.2d 322", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "313 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726125 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0442-01" ] }, { "cite": "524 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "136 N.C. App. 114", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238496 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/136/0114-01" ] }, { "cite": "515 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "479", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219477 ], "year": 1999, "pin_cites": [ { "page": "333", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0332-01" ] }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "24-25" }, { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "321 S.E.2d 872", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "876", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "312 N.C. 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757161 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "229", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0224-01" ] }, { "cite": "414 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499908 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0088-01" ] }, { "cite": "497 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "120" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648368 ], "year": 1998, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0084-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "341 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 1 }, { "cite": "315 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715201, 4718241, 4716523, 4717616, 4717112 ], "year": 1986, "opinion_index": 1, "case_paths": [ "/nc/315/0590-04", "/nc/315/0590-05", "/nc/315/0590-01", "/nc/315/0590-02", "/nc/315/0590-03" ] }, { "cite": "331 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "730" } ], "opinion_index": 1 }, { "cite": "76 N.C. App. 16", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526532 ], "year": 1985, "pin_cites": [ { "page": "22" } ], "opinion_index": 1, "case_paths": [ "/nc-app/76/0016-01" ] }, { "cite": "533 S.E.2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "849" } ], "opinion_index": 1 }, { "cite": "139 N.C. App. 487", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497081 ], "year": 2000, "pin_cites": [ { "page": "497-98" } ], "opinion_index": 1, "case_paths": [ "/nc-app/139/0487-01" ] }, { "cite": "342 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 1 } ], "analysis": { "cardinality": 681, "char_count": 14294, "ocr_confidence": 0.75, "pagerank": { "raw": 8.197172034240644e-08, "percentile": 0.47588759035758454 }, "sha256": "1b116cff2de68798c44ca3c1d04d6847940bc0280d47238d99abe69da3caf6a5", "simhash": "1:bcc3406d134f1472", "word_count": 2285 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN concurs.", "Judge GREENE dissents." ], "parties": [ "KAY SMITH, Plaintiff v. YOUNG MOVING AND STORAGE, INC., Defendant" ], "opinions": [ { "text": "EDMUNDS, Judge.\nDefendant Young Moving and Storage, Inc., appeals the trial court\u2019s order denying its Motion to Compel Arbitration and Stay Litigation Proceeding Pending Arbitration. We reverse.\nOn 22 May 1998, plaintiff Kay Smith filed a claim alleging that defendant had lost personal property that she had stored under contract at defendant\u2019s facility. Defendant\u2019s answer denied liability but did not assert any affirmative defenses. On 4 March 1999, the trial court entered a Scheduling Order requiring that mediation be conducted on or before 22 May 1999 and that \u201c[a]ll dispositive motions with specific grounds for . . . relief\u2019 be filed by 30 June 1999. In the same Order, the court calendared the case for trial on 16 August 1999.\nAlthough a mediator was appointed by the trial court, the mediated settlement conference ended in an impasse. Thereafter, plaintiff served defendant with her First Set of Interrogatories and a Request for Production of Documents on 27 January 1999; defendant responded on 12 April 1999 and supplemented its answers on 8 June 1999. Defendant served upon plaintiff its First Set of Interrogatories and Requests for Production of Documents on 14 April 1999.\nOn 11 June 1999, plaintiff noticed the deposition of defendant\u2019s chief executive officer for 8 July 1999. However, defendant\u2019s original counsel withdrew on 12 June 1999, and new counsel filed notice of appearance on 24 June 1999. On 2 July 1999, through its new counsel, defendant filed a Motion for Leave to Amend Answer, a Motion to Compel Arbitration and Stay Litigation Proceeding Pending Arbitration, and a Motion for Continuance of Trial and Extension of the Discovery Scheduling Order. After hearing arguments of both parties, the trial court on 10 August 1999 denied all of defendant\u2019s motions, including his motion to compel arbitration. Defendant appeals.\nAlthough an order denying arbitration is interlocutory, it is immediately appealable because it involves a substantial right. See N.C. Gen. Stat. \u00a7 1-277 (1999); Sullivan v. Bright, 129 N.C. App. 84, 86, 497 S.E.2d 118, 120 (1998). Accordingly, we shall address defendant\u2019s contentions. In our review, we are mindful that North Carolina has a strong public policy favoring resolution of disputes through arbitration. See Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 414 S.E.2d 30 (1992). \u201c \u2018[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.\u2019 \u201d Cyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876 (1984) (alteration in original) (quoting Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 74 L. Ed. 2d 765, 785 (1983)).\nPlaintiff first argues that the trial court\u2019s order should be affirmed because defendant\u2019s motion for arbitration was filed after the deadline for filing dispositive motions set in the court\u2019s Scheduling Order. The North Carolina General Assembly has authorized our Supreme Court to promulgate rules of practice and procedure for the superior and district courts. See N.C. Gen. Stat. \u00a7 7A-34 (1999).\nPursuant to this authority, our Supreme Court requires the Senior Resident Judge and Chief District Judge in each judicial district to \u201ctake appropriate actions [such as the promulgation of local rules] to insure prompt disposition of any pending motions or other matters necessary to move the cases toward a conclusion.\u201d\nYoung v. Young, 133 N.C. App. 332, 333, 515 S.E.2d 478, 479 (1999) (alteration in original) (quoting Gen. R. Pract. Super, and Dist. Ct. 2(d), 1999 Ann. R. N.C. 2). Such rules have been propounded in Judicial District 11B, where Local Rule 4 reads in pertinent part:\na. In every case \u2014 -without exception \u2014 Judge . . . shall enter a Scheduling Order in the same format as Exhibit A attached to this CMP.\nJudicial District 11B, Johnston County Superior Court Local Rules, Rule 4(a). This rule also requires the trial court to set a deadline in the Scheduling Order for filing dispositive motions and provides the court discretionary authority to impose sanctions for violations of the Scheduling Order. See id., Rule 4(b) & (e).\nIn the case at bar, the trial court on 3 March 1999 entered a Scheduling Order setting 30 June 1999 as the deadline for the filing of dispositive motions. Defendant through new counsel filed its motion to compel arbitration on 2 July 1999. In denying defendant\u2019s motion, the trial court concluded as a matter of law that \u201call motions filed by defendant are dispositive motions and are filed outside the period required by the Court\u2019s Scheduling Order.\u201d We review a trial court\u2019s conclusions of law de novo. See Clark v. City of Asheboro, 136 N.C. App. 114, 524 S.E.2d 46 (1999).\nOur research has failed to find a definition of the term \u201cdisposi-tive motion\u201d in any North Carolina case or statute, and we are reluctant now to attempt to concoct a definition to cover all contingencies. In the case at bar, defendant\u2019s motion for arbitration requested only that the litigation be stayed pending arbitration. This request was consistent with N.C. Gen. Stat. \u00a7 l-567.3(d) (1999), which states that any action subject to arbitration is stayed. In addition, our Supreme Court has observed that the trial court is not \u201cousted\u201d of its jurisdiction by the application of an arbitration clause. See Adams v. Nelsen, 313 N.C. 442, 446 n.3, 329 S.E.2d 322, 324-25 n.3 (1985). Although the dissent correctly states that a confirmed arbitration award is conclusive of all rights and an absolute bar to subsequent action, other outcomes are possible. A party may apply to the court to modify or correct an award pursuant to N.C. Gen. Stat. \u00a7 1-567.14 (1999), or to vacate an award pursuant to N.C. Gen. Stat. \u00a7 1-567.13 (1999). In other words, although defendant\u2019s motion to arbitrate disposed of the issues in the case, it did not dispose of the case itself. Bearing in mind the strong state policy favoring arbitration, we conclude that defendant\u2019s motion seeking a stay of trial pending arbitration was not a \u201cdis-positive\u201d motion precluded by the Scheduling Order.\nPlaintiff next argues that defendant waived arbitration by not pleading it as an affirmative defense pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (1999). However, our Supreme Court has held that the mere filing of pleadings does not manifest waiver of a contractual right to arbitrate. See Cyclone Roofing Co., 312 N.C. 224, 321 S.E.2d 872 (suit filed 5 March 1980, answers and cross-claims filed 7 July 1980, 9 July 1980, and 14 July 1980; on 11 August 1980, allegation that dispute subject to mandatory arbitration made for first time in answer to cross-claim and third-party complaint; order requiring arbitration upheld). Consequently, defendant has not waived arbitration.\nIn the alternative, plaintiff contends that she has been prejudiced by defendant\u2019s delay in seeking arbitration. Our Supreme Court has described the type of prejudice plaintiff must demonstrate in order to prevail.\nA party may be prejudiced by his adversary\u2019s delay in seeking arbitration if (1) it is forced to bear the expense of a long trial, (2) it loses helpful evidence, (3) it takes steps in litigation to its detriment or expends significant amounts of money on the litigation, or (4) its opponent makes use of judicial discovery procedures not available in arbitration.\nServomation Corp. v. Hickory Construction Co., 316 N.C. 543, 544, 342 S.E.2d 853, 854 (1986). The prejudice described by plaintiff in the case at bar consists, for the most part, of inconveniences and expenses consistent with normal trial preparation. As in Servomation, the record is devoid of evidence of the extent of expenses incurred by plaintiff.\nIn any event, we are of the opinion that evidence of expenses related to defendant\u2019s interrogatories would have been irrelevant since plaintiff has failed to demonstrate that the judicial discovery procedures used by defendant, or their equivalent, would be unavailable in arbitration. Thus plaintiff might well have incurred the same expense during arbitration.\nId. at 545, 342 S.E.2d at 854-55.\nFinally, plaintiff argues that the document before the court at the time of the hearing did not contain the arbitration clause in issue. However, plaintiff did not raise this issue below, did not properly preserve the issue, and has failed to cross-assign error, as required by N.C. R. App. P. 10(d). Accordingly, we will not consider this issue.\nAlthough we understand the trial court\u2019s apparent frustration at defendant\u2019s tardy filing of its motion to arbitrate, in light of the policy strongly favoring arbitration, we hold that the trial court erred in denying defendant\u2019s motion. This case is remanded to the trial court for entry of an order consistent with this opinion.\nReversed and remanded.\nJudge MARTIN concurs.\nJudge GREENE dissents.", "type": "majority", "author": "EDMUNDS, Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree with the majority that defendant\u2019s motion to compel arbitration was not a \u201cdispositive\u201d motion. I, therefore, dissent.\nThe Johnston County Superior Court Local Rules (the Rules) require the trial court to set in its Scheduling Order a deadline for filing \u201cdispositive motions.\u201d Judicial District 11B, Johnston County Superior Court Local Rules, Rule 4(a), (b). \u201cThe deadlines in the Scheduling Order may be modified only with the consent of all counsel or by Order of [the trial court].\u201d Id., Rule 4(d). The trial court has the discretion to refuse to consider \u201cdispositive\u201d motions filed after the deadline set in the Scheduling Order. Id., Rule 4(e). Because the Rules do not define \u201cdispositive,\u201d this term must be given its plain meaning. See Peacock v. Shinn, 139 N.C. App. 487, 497-98, 533 S.E.2d 842, 849 (2000). The plain meaning of \u201cdispositive\u201d is: \u201cBeing a deciding factor; . . . bringing about a final determination.\u201d Black\u2019s Law Dictionary 484 (7th ed. 1999). A motion for arbitration is, therefore, a \u201cdispositive\u201d motion if arbitration of a claim results in a \u201cfinal determination\u201d of the claim.\nThe North Carolina Uniform Arbitration Act (the Act) provides \u201c[u]pon application of a party, the court shall confirm an [arbitration] award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award.\u201d N.C.G.S. \u00a7 1-567.12 (1999); see also N.C.G.S. \u00a7 1-567.13 (1999) (setting out grounds for vacating arbitration award); N.C.G.S. \u00a7 1-567.14 (1999) (setting out grounds for modifying or correcting arbitration award). Additionally, the Act provides: \u201cUpon the granting of an order confirming, modifying or correcting an [arbitration] award, judgment or decree shall be entered in conformity therewith and be docketed and enforced as any other judgment or decree.\u201d N.C.G.S. \u00a7 1-567.15 (1999). A confirmed arbitration award, therefore, \u201cis conclusive of all rights, questions, and facts in issue, as to the parties and their privies, and as to them constitutes an absolute bar to a subsequent action arising out of the same cause of action or dispute.\u201d Rodgers Builders v. McQueen, 76 N.C. App. 16, 22, 331 S.E.2d 726, 730 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986). Accordingly, an order requiring parties to arbitrate a claim under the Act results in a \u201cfinal determination\u201d of the claim. It follows a motion to compel arbitration is a \u201cdispositive\u201d motion.\nIn this case, defendant filed a motion to compel arbitration after the deadline in the trial court\u2019s Scheduling Order had passed. The trial court denied defendant\u2019s motion, concluding the motion was a \u201cdispositive motion[] . . . filed outside the period required by the Court\u2019s Scheduling Order.\u201d I agree with the trial court that a motion to compel arbitration is a \u201cdispositive\u201d motion, and there is no indication in the record that the trial court abused its discretion by denying defendant\u2019s motion on the ground the motion was filed after the deadline set in the Scheduling Order. I, therefore, would affirm the order of the trial court denying defendant\u2019s motion to compel arbitration.\n. The fact that an arbitration award can, under limited circumstances, be vacated or modified does not detract from the dispositive nature of an arbitration award. Indeed, the North Carolina Rules of Civil Procedure set out procedures for seeking amendment to or relief from final judgments. N.C.G.S. \u00a7 1A-1, Rules 59, 60 (1999). Nevertheless, a judgment, unless it is interlocutory, is a \u201cfinal determination of the rights of the parties.\u201d N.C.G.S. \u00a7 1A-1, Rule 54 (1999).", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Hinton, Hewett & Wood, P.A., by Alan B. Hewett, for plaintiff-appellee.", "McGuire, Woods, Battle & Boothe, L.L.P., by Fred M. Wood, Jr. and Melissa M. Kemmer, for defendant-appellant." ], "corrections": "", "head_matter": "KAY SMITH, Plaintiff v. YOUNG MOVING AND STORAGE, INC., Defendant\nNo. COA99-1378\n(Filed 29 December 2000)\n1. Arbitration and Mediation\u2014 motion to stay trial pending arbitration \u2014 not a dispositive motion\nThe trial court erred by denying defendant\u2019s motion to compel arbitration and to stay trial pending arbitration, even though plaintiff contends defendant missed the deadline for filing dis-positive motions set in the court\u2019s scheduling order, because defendant\u2019s motion was not a dispositive motion.\n2. Arbitration and Mediation\u2014 failure to plead arbitration as affirmative defense \u2014 not waiver\nA defendant did not waive arbitration by failing to plead it as an affirmative defense under N.C.G.S. \u00a7 1A-1, Rule 8(c), because the mere filing of pleadings does not manifest waiver of a contractual right to arbitrate.\n3. Arbitration and Mediation\u2014 delay in seeking arbitration\u2014 no prejudice shown\nA plaintiff was not prejudiced by a defendant\u2019s delay in seeking arbitration because: (1) the prejudice described by plaintiff consists, for the most part, of inconveniences and expenses consistent with normal trial preparation; and (2) the record is devoid of evidence of the extent of expenses incurred by plaintiff, and plaintiff might well have incurred the same expense during arbitration.\nJudge Greene dissenting.\nAppeal by defendant from order entered 11 August 1999 by Judge Henry W. Hight in Johnston County Superior Court. Heard in the Court of Appeals 19 September 2000.\nHinton, Hewett & Wood, P.A., by Alan B. Hewett, for plaintiff-appellee.\nMcGuire, Woods, Battle & Boothe, L.L.P., by Fred M. Wood, Jr. and Melissa M. Kemmer, for defendant-appellant." }, "file_name": "0469-01", "first_page_order": 499, "last_page_order": 505 }