{ "id": 9130955, "name": "JOSEPH C. SCIOLINO and CONSTANCE F. SCIOLINO, Plaintiffs v. TD WATERHOUSE INVESTOR SERVICES, INC.; WATERHOUSE SECURITIES, INC.; NEIL KIRK PORTER, and ANTHONY TYSON POPE, Defendants", "name_abbreviation": "Sciolino v. TD Waterhouse Investor Services, Inc.", "decision_date": "2002-04-02", "docket_number": "No. COA01-422", "first_page": "642", "last_page": "646", "citations": [ { "type": "official", "cite": "149 N.C. App. 642" } ], "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": "373 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564495, 2561577, 2560493, 2565935 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0370-04", "/nc/323/0370-03", "/nc/323/0370-01", "/nc/323/0370-02" ] }, { "cite": "369 S.E.2d 122", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "126" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 478", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525159 ], "year": 1988, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0478-01" ] }, { "cite": "73 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "620" }, { "page": "620" } ], "opinion_index": 0 }, { "cite": "236 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627108 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "607" }, { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0604-01" ] }, { "cite": "321 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681996, 4681171, 4681205, 4679613, 4685119 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0751-02", "/nc/311/0751-05", "/nc/311/0751-04", "/nc/311/0751-03", "/nc/311/0751-01" ] }, { "cite": "313 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "877" }, { "page": "877" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526599 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "17" }, { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "401 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523254 ], "year": 1991, "pin_cites": [ { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0255-01" ] }, { "cite": "423 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "794" }, { "page": "794" }, { "page": "794" }, { "page": "795" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 268", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523733 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "272" }, { "page": "271" }, { "page": "272" }, { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0268-01" ] }, { "cite": "507 S.E.2d 913", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "914" } ], "opinion_index": 0 }, { "cite": "131 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11204567 ], "year": 1998, "pin_cites": [ { "page": "689" } ], "opinion_index": 0, "case_paths": [ "/nc-app/131/0687-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-567.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "514 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "308" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216979 ], "year": 1999, "pin_cites": [ { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0116-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 507, "char_count": 11182, "ocr_confidence": 0.781, "pagerank": { "raw": 5.129921247715455e-07, "percentile": 0.9389186396581423 }, "sha256": "914d17f97f0381cb9035d58040d9067dc5011b11d530e069cd86163403e3c8df", "simhash": "1:4333456ef79fa0de", "word_count": 1728 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and SMITH concur." ], "parties": [ "JOSEPH C. SCIOLINO and CONSTANCE F. SCIOLINO, Plaintiffs v. TD WATERHOUSE INVESTOR SERVICES, INC.; WATERHOUSE SECURITIES, INC.; NEIL KIRK PORTER, and ANTHONY TYSON POPE, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nTD Waterhouse Investor Services, Inc., Waterhouse Securities, Inc., Neil Kirk Porter and Anthony Tyson Pope (collectively, \u201cdefendants\u201d) appeal from an order denying their motion to compel arbitration. For the reasons stated herein; we affirm the order of the trial court.\nOn 29 June 2000, Joseph C. Sciolino and his wife, Constance F. Sciolino (collectively, \u201cplaintiffs\u201d), filed a complaint against defendants in Wake County Superior Court, alleging breaches of contract and fiduciary duty, negligence, constructive and securities fraud, and conversion. Defendants thereafter filed a motion to compel arbitration of plaintiffs\u2019 claims, which motion the trial court heard on 26 October 2000. Upon consideration of all of the evidence and arguments by the parties, the trial court made the following findings of fact:\n1. Plaintiffs are citizens of Wake County, North Carolina. They opened a joint brokerage account with the corporate defendants. In connection therewith, plaintiffs executed a document entitled \u201cWaterhouse webBroker New Account Application.\u201d A copy of that agreement was attached to the affidavit of Ms. Campanella, an employee of Waterhouse. Both plaintiffs signed the document on its reverse side on or about August 12,1998. The document, at paragraph 11(5), references an attached \u201ccustomer agreement.\u201d\n2. Defendants attached a customer agreement to their original motion to compel arbitration, and to the affidavit of Ms. Campanella. That customer agreement is on a separate sheet from the new account application. It contains an arbitration clause. However, the customer agreement is not signed by either plaintiff or any of defendants. Defendants contend that the customer agreement was provided to plaintiffs at the time they executed the new account application.\n3. Plaintiffs deny having been provided with a copy of the customer agreement. Mr. Sciolino testified, by affidavit, that he had searched his files, and did not have a copy of a customer agreement. Mr. Sciolino testified, in his affidavit, that he inquired of defendant Porter, in November, 1999, as to the existence of any documents in plaintiffs\u2019 file, and that Mr. Porter provided Mr. Sciolino with certain documents that are attached as exhibits to Mr. Sciolino\u2019s affidavit, representing that those documents constituted the account documents. The documents provided by Mr. Porter include a customer agreement, but it is not the same customer agreement that was attached to defendants\u2019 motion. In fact, the customer agreement provided to Mr. Sciolino by Mr. Porter contains a revision date of September, 1998, which is after the date on which plaintiffs signed the new account application.\n4. Plaintiffs have disputed the existence of an agreement to arbitrate. After having conducted a plenary hearing, the court finds that the existence of an agreement to arbitrate has not been demonstrated.\nBased on the above-stated facts, the trial court concluded that an arbitration agreement did not exist and accordingly denied defendants\u2019 motion to compel arbitration, from which order defendants appeal.\nThe sole issue on appeal is whether the trial court erred in denying defendants\u2019 motion to compel arbitration. We conclude that the trial court properly denied defendants\u2019 motion.\nWe note initially that the order denying defendants\u2019 motion to compel arbitration is interlocutory, as it is not a final judgment. See Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Although we do not generally review interlocutory orders, see id., \u201can order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed.\u201d Martin v. Vance, 133 N.C. App. 116, 119, 514 S.E.2d 306, 308 (1999). Thus, we review the merits of defendants\u2019 appeal in the instant case.\nDefendants argue that the trial court erred in denying their motion to compel arbitration. Noting the public policy which favors arbitration, defendants contend that, by signing the webBroker Account Application (\u201cthe application\u201d), plaintiffs agreed to submit any dispute arising from their account to arbitration. The application at issue contains the following statements:\nBy signing this Agreement I acknowledge that:\n1) I have read, understand, and agree to be bound by the terms of the attached Customer Agreement....\n5) The enclosed Customer Agreement contains a pre-dispute Arbitration clause. Please see paragraph #9 of the Customer Agreement for full details.\nDefendants argue that the above-stated language incorporates by reference the customer agreement containing the arbitration clause, such that plaintiffs are bound by its terms.\nWhen a party disputes the existence of a valid arbitration agreement, the trial judge must determine whether an agreement to arbitrate exists. See N.C. Gen. Stat. \u00a7 1-567.3(a) (1999); Burke v. Wilkins, 131 N.C. App. 687, 689, 507 S.E.2d 913, 914 (1998). The trial court\u2019s findings regarding the existence of an arbitration agreement are conclusive on appeal where supported by competent evidence, even where the evidence might have supported findings to the contrary. See Routh v. Snap-On Tools Corp., 108 N.C. App. 268, 272, 423 S.E.2d 791, 794 (1992). Accordingly, upon appellate review, we must determine whether there is evidence in the record supporting the trial court\u2019s findings of fact and if so, whether these findings of fact in turn support the conclusion that there was no agreement to arbitrate. See Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991).\nBefore a dispute can be settled by arbitration, there must first exist a valid agreement to arbitrate. See N.C. Gen. Stat. \u00a7 1-567.2 (1999); Routh, 108 N.C. App. at 271, 423 S.E.2d at 794. As the moving party, defendants bear the burden of demonstrating that the parties mutually agreed to arbitrate their dispute. See Blow v. Shaughnessy, 68 N.C. App. 1, 17, 313 S.E.2d 868, 877, disc. review denied, 311 N.C. 751, 321 S.E.2d 127 (1984). \u201cThis Court has even suggested that an agreement to arbitrate, if contained in a contract covering other topics, must be independently negotiated. This apparent requirement for independent negotiation underscores the importance of an arbitration provision and \u2018militates against its inclusion in contracts of adhesion.\u2019 \u201d Routh, 108 N.C. App. at 272, 423 S.E.2d at 794 (quoting Blow, 68 N.C. App. at 16, 313 S.E.2d at 877) (citations omitted).\nIn support of their motion to compel arbitration, defendants submitted two different customer agreements, one of which was revised a month after plaintiffs opened their account. Neither customer agreement bears the signatures of plaintiffs or defendants. Defendants nevertheless assert that plaintiffs are bound to the terms of the customer agreement because the arbitration clause contained in the revised customer agreement is identical to the one referenced by the application signed by plaintiffs. We disagree.\nIt is well established that a valid contract arises only where the parties \u201cassent to the same thing in the same sense, and their minds .. . meet as to all the terms.\u201d Goeckel v. Stokeley, 236 N.C. 604, 607, 73 S.E.2d 618, 620 (1952); see Walker v. Goodson Farms, Inc., 90 N.C. App. 478, 486, 369 S.E.2d 122, 126, disc. review denied, 323 N.C. 370, 373 S.E.2d 556 (1988). Where there is no mutual agreement as to all of the terms, there is no contract. See Goeckel, 236 N.C. at 607, 73 S.E.2d at 620. \u201cIf a question arises concerning a party\u2019s assent to a written instrument, the court must first examine the written instrument to ascertain the intention of the parties.\u201d Routh, 108 N.C. App. at 273, 423 S.E.2d at 795.\nIn the application signed by plaintiffs in the instant case, plaintiffs agreed to \u201cbe bound by the terms of the attached Customer Agreement.\u201d Plaintiffs deny, however, that defendants attached any type of document to the application. Defendants have produced two separate customer agreements, neither of which is attached to the application signed by plaintiffs and neither of which bears plaintiffs\u2019 signatures. .Further, as plaintiffs note, \u201cthere is nothing on the Customer Agreement itself \u2014 no signature, no initials, no account number \u2014 to suggest that it was ever provided to plaintiffs; when it was provided; in connection with which account it was provided, whether the sole or joint account; or whether plaintiffs ever saw it at all.\u201d Although the arbitration clauses contained within the two customer agreements are identical, the remaining clauses are not identical. Defendants produced no evidence that plaintiffs actually received either customer agreement when they signed the application. Thus, there was competent evidence before the trial court that defendants failed to attach a customer agreement to the account application. As the customer agreement was not attached to the application, plaintiffs did not agree, under the plain language of the contract, to be bound by its terms. In light of the lack of evidence presented by defendants in support of their contention that plaintiffs agreed to arbitrate their claim, we hold that the trial court properly concluded that defendants failed to demonstrate that there was a valid agreement to arbitrate. We therefore affirm the trial court\u2019s order denying defendants\u2019 motion to compel arbitration.\nAffirmed.\nJudges BRYANT and SMITH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Ellis & Winters L.L.P., by J. Anthony Penry, for plaintiff appellees.", "Bums, Day & Presnell, PA., by Daniel C. Higgins, for defendant appellants." ], "corrections": "", "head_matter": "JOSEPH C. SCIOLINO and CONSTANCE F. SCIOLINO, Plaintiffs v. TD WATERHOUSE INVESTOR SERVICES, INC.; WATERHOUSE SECURITIES, INC.; NEIL KIRK PORTER, and ANTHONY TYSON POPE, Defendants\nNo. COA01-422\n(Filed 2 April 2002)\n1. Appeal and Error\u2014 appealability \u2014 denial of arbitration\u2014 substantial right\nAlthough defendants\u2019 appeal from the denial of their motion to compel arbitration is an appeal from an interlocutory order, an order denying arbitration is immediately appealable because it involves a substantial right.\n2. Arbitration and Mediation\u2014 motion to compel \u2014 customer agreement not attached to signed application\nThe trial court did not err in an action alleging breach of contract, breach of fiduciary duty, negligence, constructive fraud, securities fraud, and conversion arising from a brokerage account by denying defendants\u2019 motion to compel arbitration even though defendants assert that plaintiffs are bound to the terms of defendants\u2019 customer agreement requiring arbitration, because: (1) defendants produced no evidence that plaintiffs actually received either customer agreement when they signed the application, and thus there was competent evidence before the trial court that defendants failed to attach a customer agreement to the account application; and (2) as the customer agreement was not attached to the application, plaintiff did not agree, under the plain language of the contract, to be bound by its terms.\nAppeal by defendants from order entered 13 December 2000 by Judge Ronald L. Stephens in Wake County Superior Court. Heard in the Court of Appeals 31 January 2002.\nEllis & Winters L.L.P., by J. Anthony Penry, for plaintiff appellees.\nBums, Day & Presnell, PA., by Daniel C. Higgins, for defendant appellants." }, "file_name": "0642-01", "first_page_order": 676, "last_page_order": 680 }