{ "id": 9082523, "name": "VILONA BLEDSOLE, Plaintiff v. RICKY LEE JOHNSON, Defendant", "name_abbreviation": "Bledsole v. Johnson", "decision_date": "2002-06-18", "docket_number": "No. COA01-866", "first_page": "619", "last_page": "630", "citations": [ { "type": "official", "cite": "150 N.C. App. 619" } ], "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": "N.C. Gen. Stat. \u00a7 61-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "502 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "695", "parenthetical": "holding that failure of a party to request a trial de novo within thirty days of the arbitrator's award acts as a waiver of that party's right to appeal the arbitrator's determination on the issue of attorney's fees or costs" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11468265 ], "year": 1998, "pin_cites": [ { "page": "454", "parenthetical": "holding that failure of a party to request a trial de novo within thirty days of the arbitrator's award acts as a waiver of that party's right to appeal the arbitrator's determination on the issue of attorney's fees or costs" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0449-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "562 S.E.2d. 919", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "150 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081464 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/150/0425-01" ] }, { "cite": "221 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "369" } ], "opinion_index": 0 }, { "cite": "289 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568007 ], "year": 1976, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0281-01" ] }, { "cite": "68 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "810" } ], "opinion_index": 0 }, { "cite": "234 N.C. 748", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626026 ], "year": 1952, "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0748-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "655", "parenthetical": "an attorney's negligent conduct is not \"excusable neglect\" under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1) (2001)" }, { "page": "655" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "546-47", "parenthetical": "an attorney's negligent conduct is not \"excusable neglect\" under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1) (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "520 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240842 ], "year": 1999, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0359-01" ] }, { "cite": "534 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "618-20", "parenthetical": "noting that such evidence could include the defendant's contract with the attorney, or an affidavit setting forth the nature of the representational relationship and the authority of the attorney" }, { "page": "619-20" }, { "page": "618" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497416 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "613-15", "parenthetical": "noting that such evidence could include the defendant's contract with the attorney, or an affidavit setting forth the nature of the representational relationship and the authority of the attorney" }, { "page": "611" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0610-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 0 }, { "cite": "534 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "618", "parenthetical": "the plaintiff \"objected to the failure of the individual defendants to appear [at the arbitration hearing], but proceeded with the hearing without waiving or withdrawing the objection\"" } ], "opinion_index": 1 }, { "cite": "139 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9497416 ], "year": 2000, "pin_cites": [ { "page": "611", "parenthetical": "the plaintiff \"objected to the failure of the individual defendants to appear [at the arbitration hearing], but proceeded with the hearing without waiving or withdrawing the objection\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/139/0610-01" ] } ], "analysis": { "cardinality": 821, "char_count": 29688, "ocr_confidence": 0.752, "pagerank": { "raw": 2.6599864896670345e-07, "percentile": 0.8248083189406024 }, "sha256": "945e0c88c563303e2237ce48ae17df9de3ef3477d2af43e44da535b8e1e55813", "simhash": "1:df795c2636407dd4", "word_count": 4968 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge GREENE dissents in a separate opinion." ], "parties": [ "VILONA BLEDSOLE, Plaintiff v. RICKY LEE JOHNSON, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nRickie Lee Johnson (\u201cdefendant\u201d) appeals from an order striking defendant\u2019s Request for Trial De Novo and awarding Vilona Bledsole (\u201cplaintiff\u2019) attorney\u2019s fees and costs. We hold the trial court did not err in striking defendant\u2019s Request for Trial De Novo. We also hold the trial court erred in awarding plaintiff costs incurred prior to the arbitration award, and we remand to the trial court for an order clarifying the basis for the award of attorney\u2019s fees and costs incurred after the arbitration award.\nPlaintiff and defendant were involved in a motor vehicle accident in November of 1998 in Cumberland County, North Carolina. Plaintiff filed a complaint on 4 April 2000 seeking damages. Defendant filed a response raising various defenses. Defendant also demanded a jury trial. On 30 June 2000, the trial court ordered the parties to participate in non-binding arbitration pursuant to N.C. Gen. Stat. \u00a7 7A-37.1 (2001). The arbitration hearing was scheduled but then continued by consent of the parties, and the hearing was rescheduled for 31 August 2000. The trial court sent copies of a \u201cNotice of Arbitration Hearing\u201d to Angela M. Hatley, the attorney representing plaintiff, and to Gay Parker Stanley, an attorney hired by defendant\u2019s insurance company, Allstate Insurance Company (\u201cAllstate\u201d), to represent defendant.\nAt the arbitration hearing, plaintiff and her attorney appeared, as well as Scott T. Stroud, an attorney from the same firm as Ms. Stanley. Defendant did not appear in person. In addition, no adjuster or representative on behalf of Allstate appeared at the hearing. The hearing lasted for thirty minutes, during which time plaintiff presented her medical bills and records, and Mr. Stroud presented photographs of plaintiffs vehicle and presented arguments. The arbitrator entered an award of $7,000.00 in plaintiffs favor, and also taxed costs of the action to defendant, although no amount of costs were included. The arbitrator did not award any attorney\u2019s fees to plaintiff.\nOn 11 September 2000, defendant filed a \u201cRequest for Trial De Novo\u201d pursuant to Rule 5(a) of the Rules for Court-Ordered Arbitration (\u201cArb. Rule 5(a)\u201d). The parties then proceeded to engage in discovery, conducting a deposition of plaintiff on 5 October 2000, and a de bene esse video deposition of plaintiffs chiropractor on 17 October 2000. On 24 October 2000, plaintiff filed a \u201cMotion for Sanctions\u201d seeking to strike defendant\u2019s Request for Trial De Novo and enforce the arbitration award, or, in the alternative, to be awarded attorney\u2019s fees and costs as a result of defendant\u2019s failure to participate in the arbitration hearing. In this motion, plaintiff argued that defendant had violated Rule 3(1) of the Rules for Court-Ordered Arbitration (\u201cArb. Rule 3(1)\u201d) by failing to participate in the arbitration hearing in a good faith and meaningful manner. A hearing on this motion was scheduled for 6 November 2000, the same day as the trial. On 6 November 2000, prior to the hearing and trial, plaintiff filed an additional motion seeking attorney\u2019s fees of $3,300.00 and costs of $1,270.70. Following a hearing on 6 November 2000, and a second hearing on 5 December 2000, the trial court entered an order on 23 January 2001 granting plaintiff\u2019s initial motion for sanctions by striking defendant\u2019s Request for Trial De Novo and enforcing the arbitration award, and also granting plaintiff attorney\u2019s fees of $1,912.50 and costs of $175.30. Defendant filed a \u201cMotion for Reconsideration and Rehearing\u201d on 14 December 2000, and the trial court denied this motion by order dated 24 January 2001. Defendant appeals from both orders.\nI.\nOn appeal, defendant first argues that the trial court erred in striking defendant\u2019s Request for Trial De Novo and in enforcing the arbitration award. Rule 3(p) of the Rules for Court-Ordered Arbitration (\u201cArb. Rule 3(p)\u201d) requires that \u201c[a]ll parties shall be present at hearings in person or through representatives authorized to make binding decisions on their behalf in all matters in controversy before the arbitrator.\u201d R. Ct.-Ordered Arbitration in N.C. 3(p), 2002 N.C. R. Ct. 233. Arb. Rule 3(1) further provides that \u201c[a]ny party failing or refusing to participate in an arbitration proceeding in a good faith and meaningful manner shall be subject to sanctions by the court on motion of a party, or report of the arbitrator, as provided in N.C.R. Civ. P. 11, 37(b)(2)(A)-37(b)(2)(C) and N.C. Gen. Stat. \u00a7 6-21.5.\u201d R. Ct.-0rdered Arbitration in N.C. 3(1), 2002 N.C. R. Ct. 233.\nHere, the trial court found as fact that defendant did not appear at the arbitration hearing, and that \u201c[t]here is no evidence in the record that Mr. Stroud was appearing at the arbitration hearing with the authority to make binding decisions on defendant\u2019s behalf in all matters in controversy before the arbitrator.\u201d Based upon these findings, the trial court concluded that defendant failed \u201cto participate in the arbitration proceeding in a good faith and meaningful manner,\u201d as required by Arb. Rule 3(1), and therefore determined that sanctions were warranted.\nThere is no dispute that defendant himself did not attend the arbitration hearing. Defendant contends that Mr. Stroud\u2019s appearance satisfied Arb. Rule 3(p) because Mr. Stroud was authorized to make binding decisions on defendant\u2019s behalf in all matters in controversy before the arbitrator. However, the record does not contain any evidence to support this contention. This Court has previously held that where a defendant fails to appear at arbitration, and where there is no evidence in the record that the attorney purporting to represent the defendant at the hearing had the authority to make binding decisions in all matters on defendant\u2019s behalf, a trial court\u2019s ruling that the defendant has violated Arb. Rule 3(p) is not an abuse of discretion. Mohamad v. Simmons, 139 N.C. App. 610, 613-15, 534 S.E.2d 616, 618-20 (2000) (noting that such evidence could include the defendant\u2019s contract with the attorney, or an affidavit setting forth the nature of the representational relationship and the authority of the attorney). Furthermore, this Court has held that, under such circumstances, a trial court\u2019s award of sanctions against the defendant in the form of striking the defendant\u2019s demand for trial de novo and enforcing the arbitration award in favor of the plaintiff is not an abuse of discretion. Id. at 614-15, 534 S.E.2d at 619-20.\nDefendant argues that Mohamad is distinguishable from the instant case for two reasons. We address each in turn.\nA.\nFirst, defendant argues, unlike in Mohamad, there is evidence in this case that defendant never received notice of the rescheduled hearing and, thus, the reasons for his failure to appear at the hearing were beyond his control. We find this argument to be unpersuasive for a number of reasons.\nFirst and foremost, there is no evidence in the record tending to show that the reasons for defendant\u2019s failure to appear were beyond his control. Defendant sought to attach to his \u201cMotion for Reconsideration and Rehearing\u201d two affidavits purportedly averring that defendant had not received any notice regarding the rescheduled arbitration hearing. In its 24 January 2001 order denying the Motion for Reconsideration and Rehearing, the trial court found that defendant had failed without justification to produce any such affidavits at the hearings on 6 November 2000 and 5 December 2000. As noted above, the trial court denied the Motion for Reconsideration and Rehearing, and further, in settling the record on appeal, ruled that all exhibits attached to the motion should be deleted from the record on appeal. It is well established that \u201c[a] trial court\u2019s order settling the record on appeal is final and will not be reviewed on appeal.\u201d Penland v. Harris, 135 N.C. App. 359, 363, 520 S.E.2d 105, 108 (1999). Furthermore, \u201c[r]eview of an order settling the record on appeal is available, if at all, only by way of certiorari.\" Id. Defendant has not applied for certiorari. Since there is no evidence in the record on appeal to show that defendant failed to attend the hearing for \u201cgood cause,\u201d defendant cannot establish that Mohamad may be distinguished on this basis.\nSecond, defendant\u2019s argument is founded upon the premise that defendant\u2019s failure to appear at the hearing was the fault of his attorneys in not notifying him of the rescheduled date, and not his own fault. Even if this were true, it is not clear that it would make a difference from a legal standpoint. Parties are generally held responsible for the negligence of their lawyers in handling their case in order to ensure that both clients and lawyers take care to act responsibly. See Briley v. Farabow, 348 N.C. 537, 546-47, 501 S.E.2d 649, 655 (1998) (an attorney\u2019s negligent conduct is not \u201cexcusable neglect\u201d under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1) (2001)).\nAllowing an attorney\u2019s negligence to be a basis for providing relief from orders would encourage such negligence and present a temptation for litigants to use the negligence as an excuse to avoid court-imposed rules and deadlines. Plaintiffs have argued that this Court should provide relief from an order if only the attorney, rather than the client, was negligent. Looking only to the attorney to assume responsibility for the client\u2019s case, however, leads to undesirable results.\nId. at 546, 501 S.E.2d at 655. Thus, even if defendant could show that his attorney received notice of the rescheduled hearing and failed to notify defendant, such fact would not necessarily compel the conclusion that defendant\u2019s failure to appear was for \u201cgood cause\u201d or was due to reasons beyond his control.\nFinally, even if there were evidence that the reasons for defendant\u2019s failure to appear were beyond his control, defendant nonetheless failed to employ the most appropriate remedy for his failure to appear: namely, moving for a rehearing pursuant to Rule 3(j) of Rules for Court-Ordered Arbitration (\u201cArb. Rule 3(j)\u201d). This rule provides:\nIf a party who has been notified of the date, time and place of the hearing fails to appear without good cause therefor, the hearing may proceed and an award may be made by the arbitrator against the absent party upon the evidence offered by the parties present, but not by default for failure to appear. . . . The court may order a rehearing of any case in which an award was made against a party who failed to obtain a continuance of a hearing and failed to appear for reasons beyond the party\u2019s control. Such motion for rehearing shall be filed with the court within the time allowed for demanding trial de novo stated in Arb. Rule 5(a).\nR. Ct.-Ordered Arbitration in N.C. 3(j), 2002 N.C. R. Ct. 232-33. If defendant had desired to contest the arbitration award against him on the basis that the reasons for his failure to appear were beyond his control, the appropriate remedy would have been filing a motion for rehearing pursuant to Arb. Rule 3(j), which defendant failed to do.\nB.\nThe second reason defendant argues that Mohamad is distin- . guishable is that here, unlike in Mohamad, plaintiff failed to object to defendant\u2019s absence during the arbitration hearing, and that plaintiff here did not raise an objection to defendant\u2019s absence until forty-three days after defendant filed the Request for Trial De Novo. Again, we find this argument unpersuasive for a number of reasons.\nFirst, there is nothing in Mohamad indicating that the Court in that case placed any significance upon the fact that the plaintiff objected to the defendants\u2019 failure to appear; the court merely noted this fact in passing during a recitation of the procedural background. See Mohamad, 139 N.C. App. at 611, 534 S.E.2d at 618). Second, nothing in the Rules for Court-Ordered Arbitration requires a party to object to an opposing party\u2019s failure to appear at an arbitration hearing, or to object to any violation of the Rules at the arbitration hearing, in order to preserve the right to later seek sanctions based upon such violation.\nMoreover, we see no reason for imposing such a requirement in this context. Generally, parties must enter objections before the lower court in order to preserve an issue for appeal because: (1) appellate courts are limited to a review of alleged errors in the rulings of the trial court, and, absent an objection and an opportunity for the trial court to rule on the objection, there is nothing for an appellate court to review, see Cotton Mill Co. v. Textile Workers Union, 234 N.C. 748, 749, 68 S.E.2d 809, 810 (1952); and (2) requiring parties to object at trial increases the likelihood that the error will be called to the trial court\u2019s immediate attention and corrected, thereby eliminating the need for a new trial, see Penland v. Green, 289 N.C. 281, 285, 221 S.E.2d 365, 369 (1976).\nHowever, in the context of a trial de novo following an arbitration hearing, the trial court is not limited to a review of alleged errors in the rulings of the arbitrator at the arbitration hearing. There is no official transcript of the arbitration hearings, see Arb. Rule 3(k), and, as a result, a trial de novo is not technically considered to be an \u201cappeal\u201d from an arbitration award, see Comment to Arb. Rule 6. Furthermore, only the trial court, and not the arbitrator, has authority to punish arbitration parties for contempt, see Arb. Rule 3(g), 3(1), 3(p), and only the trial court has authority to schedule or reschedule arbitration hearings, see Arb. Rule 8(b), or to order a rehearing, see Arb. Rule 3(j). Thus, an objection at the arbitration hearing to a party\u2019s failure to appear would not have the effect of providing the arbitrator an opportunity to enter any contempt ruling based upon the party\u2019s failure to appear or to order that the hearing be rescheduled.\nc.\nDefendant has asserted various other grounds in support of his contention that the trial court erred in striking the demand for trial de novo. Defendant draws our attention to the fact that plaintiffs motion for sanctions was not made until forty-three days after defendant filed its demand for trial de novo, and one week before trial was scheduled. While we agree that such delay can result in significant inconvenience and cost for the opposing party, who is left having unnecessarily prepared for trial if the demand for trial de novo is ultimately stricken, only our Supreme Court has the authority to \u201cadopt rules governing\u201d the procedure for court-ordered, nonbinding arbitration. See N.C. Gen. Stat. \u00a7 7A-37.1(b). At present, the Rules for Court-Ordered Arbitration do not include a deadline for filing a Motion for Sanctions based upon an opposing party\u2019s failure to appear at the arbitration hearing in violation of Arb. Rule 3(1).\nDefendant also contends that the trial court erred in finding that Mr. Stroud \u201cdid not conduct any cross-examination and presented no evidence during the course of the arbitration hearing.\u201d Defendant contends that Mr. Stroud did, in fact, present evidence at the hearing. Even assuming arguendo that defendant is correct, and that the trial court\u2019s finding to the contrary is not supported by the evidence in the record, such finding was not necessary to the court\u2019s conclusion that defendant failed to participate in the arbitration proceeding in a good faith and meaningful manner. This conclusion was adequately supported, as noted above, by the trial court\u2019s findings that defendant did not appear at the arbitration hearing, and that \u201c[t]here is no evidence in the record that Mr. Stroud was appearing at the arbitration hearing with the authority to make binding decisions on defendant\u2019s behalf in all matters in controversy before the arbitrator.\u201d\nDefendant also contends the trial court erred in finding that no \u201cperson from Allstate Insurance Company appeared at the arbitration hearing.\u201d We agree with defendant that this finding would not be a proper basis for concluding that defendant failed to participate in the arbitration proceeding in a good faith and meaningful manner. This is because nothing in the Rules for Court-Ordered Arbitration requires the attendance of a representative of a party\u2019s insurance company when such insurance company is not a named party in the action. See Johnson v. Brewington, 150 N.C. App. 425, 562 S.E.2d. 919 (2002). However, there is no indication in the order that the trial court\u2019s conclusion was dependent upon this finding, and thus, any error in entering this finding was inconsequential.\nII.\nDefendant next assigns error to the trial court\u2019s award of attorney\u2019s fees in favor of plaintiff. The arbitration award did not include an award of attorney\u2019s fees in favor of plaintiff. The trial court in its order awarded plaintiff attorney\u2019s fees only for fees \u201cincurred during the time period from the date of the arbitrator\u2019s award to October 9, 2000 and for the preparation and filing of the motion for sanctions.\u201d However, the order does not clearly indicate the basis upon which such fees were awarded.\nIt is possible that the trial court intended to award such attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-21.5 (2001) as sanctions for defendant\u2019s failure to appear at arbitration. However, such basis for the award of attorney\u2019s fees would have been improper. Section 6-21.5 of our General Statutes allows a court to \u201caward a reasonable attorney\u2019s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading.\u201d N.C. Gen. Stat. \u00a7 6-21.5. Here, the trial court did not find facts that would support such a conclusion, the trial court did not enter such a conclusion in its order, and the record does not, in fact, support such a conclusion.\nIt is also possible that the trial court intended to award attorney\u2019s fees, not as a sanction pursuant to N.C. Gen. Stat. \u00a7 6-21.5, but, rather, based upon some other statutory authority (for example, plaintiff\u2019s motion for attorney\u2019s fees and costs expressly refers to Rule 11, Rule 37, and N.C. Gen. Stat. \u00a7 6-21.1). Because the trial court may have intended to award attorney\u2019s fees based upon some statutory authority other than N.C. Gen. Stat. \u00a7 6-21.5, we remand the case to the trial court. If the only basis for the trial court\u2019s award of attorney\u2019s fees was N.C. Gen. Stat. \u00a7 6-21.5, the trial court is instructed to enter an order denying plaintiff\u2019s motion for attorney\u2019s fees. If the award of attorney\u2019s fees was intended to be made upon some other basis, the trial court is instructed to enter an order clarifying the basis for the attorney\u2019s fee award.\nIII.\nFinally, defendant argues that the trial court erred in awarding costs of $175.30 to plaintiff ($91.30 for costs incurred through the date of the arbitration hearing, and $84.00 for costs incurred since the arbitration hearing). The Arbitration Award and Judgment states that costs are to be taxed against defendant, but it does not actually specify any particular amount to be awarded to plaintiff as costs. Defendant contends that no specific costs were included in the award because plaintiff did not present any evidence of her costs at the arbitration hearing. Defendant further contends that any costs awarded to plaintiff by the trial court would essentially constitute a modification of the Arbitration Award and Judgment, and that such modification would be improper since defendant\u2019s Motion for Trial De Novo was stricken, and plaintiff did not appeal from the arbitration award. To the extent that the trial court awarded plaintiff costs incurred up to the date of the arbitration hearing, we agree.\nIt is important to understand the status of this action at the time the trial court struck defendant\u2019s Request for Trial De Novo. Rule 6(b) of the Rules for Court-Ordered Arbitration (\u201cArb. Rule 6(b)\u201d) provides in pertinent part:\nIf the case is not terminated by agreement of the parties, and no party files a demand for trial de novo within 30 days after the award is filed, the clerk or the court shall enter judgment on the award, which shall have the same effect as a consent judgment in the action.\nR. Ct.-Ordered Arbitration in N.C. 6(b), 2002 N.C. R. Ct. 234. Initially, we hold that the same result (entry of judgment on the award with the effect of a consent judgment) obtains where, as here, (1) an Arbitration Award and Judgment is entered, (2) one of the parties demands a trial de novo, and (3) the trial court strikes the demand for trial de novo as a form of sanctions based upon a violation of Rule 3(1). Thus, as a result of the trial court\u2019s 23 January 2001 order striking defendant\u2019s demand for trial de novo, and because plaintiff did not file a demand for trial de novo within thirty days, the trial court\u2019s order entering judgment on the arbitration award has the same effect as a consent judgment.\nThe trial court awarded costs incurred by plaintiff prior to the arbitration award, even though such costs were not specifically included in the arbitration award. This award of costs incurred before the arbitration award was improper and must be reversed. There is nothing in the Rules for Court-Ordered Arbitration indicating that, following entry of judgment by the clerk or the trial court on an arbitration award which then has \u201cthe same effect as a consent judgment,\u201d the trial court has authority to alter the terms of the arbitration award by awarding costs incurred prior to the arbitration award which were not included in the award. See Taylor v. Cadle, 130 N.C. App. 449, 454, 502 S.E.2d 692, 695 (1998) (holding that failure of a party to request a trial de novo within thirty days of the arbitrator\u2019s award acts as a waiver of that party\u2019s right to appeal the arbitrator\u2019s determination on the issue of attorney\u2019s fees or costs).\nAs to the trial court\u2019s award of costs incurred by plaintiff after the arbitration award, the trial court\u2019s order fails to indicate the statutory basis for this award. As to these costs, we remand to the trial court for entry of an order clarifying the basis for this award.\nIn summary, we affirm the trial court\u2019s 23 January 2001 order to the extent that it strikes defendant\u2019s demand for trial de novo based upon defendant\u2019s violation of Rule 3(1). We reverse the trial court\u2019s order to the extent it purports to award plaintiff costs incurred prior to the arbitration award. As to the trial court\u2019s award of attorney\u2019s fees and costs incurred after the arbitration award, we remand to the trial court for entry of an order clarifying the basis for such awards.\nAffirmed in part, reversed in part, and remanded.\nJudge TIMMONS-GOODSON concurs.\nJudge GREENE dissents in a separate opinion.\n. Arb. Rule 3(1) authorizes a trial court to award sanctions pursuant only to Rule 11, Rule 37(b)(2)(a)-(c), and N.C. Gen. Stat. \u00a7 61-21.5. The trial court\u2019s order references only Rule 37 and N.C. Gen. Stat. \u00a7 61-21.5. Because the order does not reference Rule 11, and because Rule 37(b)(2)(a)-(c) does not authorize attorney\u2019s fees as sanctions, the trial court may have intended to award attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 61-21.5.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nAll parties to a case that is to be arbitrated pursuant to the Rules for Court-Ordered Arbitration (the Rules) are required to be present at the arbitration hearing or to have a representative present who is authorized to make binding decisions on their behalf. N.C. Arb. R. 3(p). If a party or its authorized representative does not appear at the hearing and the arbitrator enters an award against that party, that party may within 30 days of the filing of the award move the trial court to order a rehearing on the grounds that he \u201cfailed to appear for reasons beyond [his] control.\u201d N.C. Arb. R. 3(j), 5(a).\nIn this case, the arbitration hearing was conducted on 31 August 2000. Defendant was not present for the hearing, although his attorney was present. At the hearing, the issue of whether defendant\u2019s attorney had the authority to make binding decisions on behalf of his client was never raised. After the hearing, on 1 September 2000, an \u201cAward and Judgment,\u201d which noted that \u201c[a] 11 parties were present in person or through an attorney,\u201d was filed. Subsequently, on 11 September 2000, defendant moved for a trial de novo pursuant to Rule 5(a). On 24 October 2000, plaintiff filed her motion for sanctions requesting defendant\u2019s trial de novo request be denied because he did not appear at the arbitration hearing or have anyone present \u201cauthorized to make binding decisions on his behalf.\u201d The trial court allowed plaintiff\u2019s motion on the grounds that defendant was neither present for the arbitration hearing nor had a representative there with the authority to make binding decisions on his behalf.\nBecause plaintiff did not raise the issue of whether defendant\u2019s attorney had the requisite Rule 3(p) authority until after expiration of the time for defendant to move the trial court for an arbitration rehearing, she is barred from raising the issue. To hold otherwise would allow her to simply wait until it is too late for defendant to attempt to correct the problem that is the basis of her motion, and this would be inconsistent with any reasonable construction of the Rules. In other words, unless a party makes a timely Rule 3(p) objection, it cannot seek to deny another party the right to request a Rule 5(a) trial de novo on the grounds that party has failed to comply with Rule 3(p). See Mohamad v. Simmons, 139 N.C. App. 610, 611, 534 S.E.2d 616, 618 (2000) (the plaintiff \u201cobjected to the failure of the individual defendants to appear [at the arbitration hearing], but proceeded with the hearing without waiving or withdrawing the objection\u201d). A timely objection is one entered either at the hearing or at the time the award is filed. As plaintiff never entered a Rule 3(p) objection, the failure of the record to show defendant\u2019s attorney had Rule 3(p) authority cannot be the basis for denying defendant a trial de novo, awarding plaintiff attorney\u2019s fees, or awarding costs. Accordingly, I would reverse and remand for an entry of an order granting defendant\u2019s request for a trial de novo.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Hatley & Stone, P.A., by Angela M. Hatley, for plaintiff-appellee.", "Walker, Clark, Allen, Herrin & Morano, L.L.P., by Jerry A. Allen, Jr. and Gay Parker Stanley, for defendant-appellant." ], "corrections": "", "head_matter": "VILONA BLEDSOLE, Plaintiff v. RICKY LEE JOHNSON, Defendant\nNo. COA01-866\n(Filed 18 June 2002)\n1. Arbitration and Mediation\u2014 failure to participate in good faith and meaningful manner \u2014 motion for trial de novo\nThe trial court did not abuse its discretion in an action arising out of an automobile accident by striking defendant\u2019s demand for a trial de novo based upon defendant\u2019s violation of Rule 3(1) of the Rules for Court-Ordered Arbitration by failing to participate in the arbitration hearing in a good faith and meaningful manner, because: (1) defendant did not appear at the arbitration hearing and there is no evidence in the record that the attorney purporting to represent defendant at the hearing was appearing with the authority to make binding decisions on defendant\u2019s behalf; (2) there is no evidence tending to show that the reasons for defendant\u2019s failure to appear at the rescheduled arbitration hearing were beyond his control; (3) even if there were evidence that the reasons for defendant\u2019s failure to appear were beyond his control, defendant failed to employ the most appropriate remedy for his failure to appear, which was moving for a rehearing under Rule 3(j) of the Rules for Court-Ordered Arbitration; (4) contrary to defendant\u2019s assertion, nothing in the Rules for Court-Ordered Arbitration requires a party to object to an opposing party\u2019s failure to appear at an arbitration hearing or to object to any violations of the Rules at the arbitration hearing in order to preserve the right to later seek sanctions based upon such violation; (5) even though plaintiff\u2019s motion for sanctions was not made until forty-three days after defendant filed its demand for trial de novo and one week before trial was scheduled, the Rules of Court-Ordered Arbitration do not include a deadline for filing a motion for sanctions based upon an opposing party\u2019s failure to appear at the arbitration hearing; and (6) there is no indication in the order that the trial court\u2019s conclusion was dependent upon the erroneous finding requiring the attendance of a representative of a party\u2019s insurance company when such insurance company is not a named party in the action.\n2. Costs\u2014 attorney fees \u2014 basis of award\nThe trial court\u2019s award of attorney fees in favor of plaintiff in an action arising out of an automobile accident for fees incurred during the time period from the date of the arbitrator\u2019s award to 9 October 2000, and for the preparation and filing of the motion for sanctions, is remanded to the trial court for entry of an order clarifying the basis of such award.\n3. Arbitration and Mediation\u2014 altering terms by awarding costs \u2014 basis of award\nThe trial court erred in an action arising out of an automobile accident by altering the terms of the arbitration award by awarding costs incurred prior to the arbitration award which were not included in the award, and the trial court\u2019s award of costs incurred by plaintiff after the arbitration award is remanded to the trial court for entry of an order clarifying the basis for this award.\nJudge Greene dissenting.\nAppeal by defendant from orders entered 23 January 2001 and 24 January 2001 by Judge Kimbrell Kelly Tucker in Cumberland County District Court. Heard in the Court of Appeals 23 April 2002.\nHatley & Stone, P.A., by Angela M. Hatley, for plaintiff-appellee.\nWalker, Clark, Allen, Herrin & Morano, L.L.P., by Jerry A. Allen, Jr. and Gay Parker Stanley, for defendant-appellant." }, "file_name": "0619-01", "first_page_order": 649, "last_page_order": 660 }