{ "id": 8352106, "name": "PINEVILLE FOREST HOMEOWNERS ASSOCIATION, Plaintiff v. PORTRAIT HOMES CONSTRUCTION CO., Defendant", "name_abbreviation": "Pineville Forest Homeowners Ass'n v. Portrait Homes Construction Co.", "decision_date": "2006-01-03", "docket_number": "No. COA05-365", "first_page": "380", "last_page": "387", "citations": [ { "type": "official", "cite": "175 N.C. App. 380" } ], "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": "619 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633956 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "500", "parenthetical": "citations omitted" }, { "page": "500" } ], "opinion_index": 0, "case_paths": [ "/se2d/619/0497-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "\"Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "566 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080966 ], "year": 2002, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0507-01" ] }, { "cite": "610 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2005, "pin_cites": [ { "page": "296" }, { "page": "296" }, { "page": "297" }, { "page": "296" }, { "page": "297" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472320 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "635" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0630-01" ] }, { "cite": "554 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "678" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378395 ], "year": 2001, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0133-01" ] }, { "cite": "145 L. Ed. 2d 1072", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "528 U.S. 1155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9686401, 9686370, 9686435, 9686508, 9686415, 9686384, 9686544, 9686480, 9686578, 9686613, 9686646, 9686454, 9686685 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/528/1155-03", "/us/528/1155-01", "/us/528/1155-05", "/us/528/1155-08", "/us/528/1155-04", "/us/528/1155-02", "/us/528/1155-09", "/us/528/1155-07", "/us/528/1155-10", "/us/528/1155-11", "/us/528/1155-12", "/us/528/1155-06", "/us/528/1155-13" ] }, { "cite": "539 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 832", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132139, 132303, 132023, 132084, 132247 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0832-03", "/nc/350/0832-05", "/nc/350/0832-04", "/nc/350/0832-01", "/nc/350/0832-02" ] }, { "cite": "516 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143188 ], "year": 1999, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0116-01" ] }, { "cite": "206 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1974, "pin_cites": [ { "page": "182" }, { "page": "182" } ], "opinion_index": 0 }, { "cite": "285 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565058 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0434-01" ] }, { "cite": "360 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3798151 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "38", "parenthetical": "citations omitted" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0034-01" ] }, { "cite": "399 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "139", "parenthetical": "the \" 'right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment' \"" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 394", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527777 ], "year": 1991, "pin_cites": [ { "page": "395", "parenthetical": "the \" 'right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0394-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "321 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 758", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4681026, 4679843, 4682027, 4681877, 4685885 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0758-04", "/nc/311/0758-03", "/nc/311/0758-01", "/nc/311/0758-05", "/nc/311/0758-02" ] }, { "cite": "316 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 140", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525839 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0140-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "254" }, { "page": "379" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "518 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "787-88", "parenthetical": "interlocutory order not immediately appealable unless appellant deprived of a substantial right or appeal properly certified pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11147227 ], "year": 1999, "pin_cites": [ { "page": "725", "parenthetical": "interlocutory order not immediately appealable unless appellant deprived of a substantial right or appeal properly certified pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0724-01" ] }, { "cite": "261 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "911", "parenthetical": "citations omitted" }, { "page": "911" } ], "opinion_index": 0 }, { "cite": "299 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575088 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "355", "parenthetical": "citations omitted" }, { "page": "355" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0351-01" ] }, { "cite": "525 S.E.2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155610 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0331-01" ] }, { "cite": "591 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "582", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 457", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917911 ], "year": 2004, "pin_cites": [ { "page": "464", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0457-01" ] }, { "cite": "574 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511470, 1511275, 1511283, 1511174 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0610-02", "/nc/356/0610-04", "/nc/356/0610-03", "/nc/356/0610-01" ] }, { "cite": "560 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "878-79" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 320", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9127650 ], "year": 2002, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0320-01" ] }, { "cite": "398 S.E.2d 445", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493040 ], "year": 1990, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0526-01" ] }, { "cite": "568 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511328, 1511428, 1511367, 1511258, 1511166 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0161-02", "/nc/356/0161-01", "/nc/356/0161-04", "/nc/356/0161-05", "/nc/356/0161-03" ] }, { "cite": "552 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "225", "parenthetical": "\"Standing is a necessary prerequisite to the court's proper exercise of subject matter jurisdiction.\"" }, { "page": "223" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355165 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "164", "parenthetical": "\"Standing is a necessary prerequisite to the court's proper exercise of subject matter jurisdiction.\"" }, { "page": "162" }, { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0159-01" ] } ], "analysis": { "cardinality": 918, "char_count": 18884, "ocr_confidence": 0.738, "pagerank": { "raw": 1.5518200956094558e-07, "percentile": 0.6747574858611448 }, "sha256": "dfb06003858be842536bc5382d197bb401d563e9cb3e56e4c2c9b20fc50212e5", "simhash": "1:b348e652606a0452", "word_count": 2909 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and STEELMAN concur." ], "parties": [ "PINEVILLE FOREST HOMEOWNERS ASSOCIATION, Plaintiff v. PORTRAIT HOMES CONSTRUCTION CO., Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPortrait Homes Construction Co. (\u201cdefendant\u201d) appeals the trial court\u2019s 20 December 2004 order (\u201cthe Order\u201d) denying its Motion to Dismiss and Motion to Stay and Compel Arbitration. For the reasons discussed herein, we dismiss defendant\u2019s appeal in part and reverse and remand in part.\nPertinent procedural and factual background information includes the following: Defendant is an Illinois-organized corporation authorized to do business in North Carolina. On 15 May 2000, defendant filed a Declaration of Covenants, Conditions, and Restrictions (\u201cthe Declaration\u201d) with the Mecklenburg County Public Registry, expressing therein its intent to build \u201can exclusive residential community of single-family attached residential units\u201d named \u201cPineville Forest.\u201d The Declaration stated defendant \u201cha[d] incorporated or w[ould] incorporate\u201d the Pineville Forest Homeowners Association (\u201cplaintiff\u2019), a nonprofit corporation established for the purpose of \u201cowning, maintaining and administering the Common Area, maintaining the exterior of the residential units and the [adjacent property owned by the Town of Pineville, North Carolina], administering and enforcing the covenants and restrictions and collecting and disbursing the assessments and charges [thereafter] created[.]\u201d Defendant subsequently developed Pineville Forest by constructing approximately one hundred thirty-three residential units in twenty-four separate buildings.\nPlaintiff filed the instant complaint on 9 September 2004, alleging defendant\u2019s \u201cimprovements\u201d to the residential units and common area were defective and deficient in both workmanship and material. Plaintiff further claimed these defects and deficiencies resulted, inter alia, in \u201cmoisture intrusion, sheathing and framing deterioration^] mold and mildew growth and pest infestation.\u201d According to the complaint, defendant had thus \u201cbreached its obligations and duties under the implied warranties of habitability, quality and fitness[,]\u201d including the assurance that the improvements \u201cwould be free from defective materials, constructed in a workmanlike manner, constructed according to sound engineering construction standards and suitable for residential use.\u201d Finally, plaintiff asserted defendant was \u201cnegligent and failed to fulfill the duties and responsibilities owed\u201d plaintiff and the individual owners, including the duty to \u201cconstruct the Community and Improvements located thereon in a reasonably careful and prudent fashion, in accordance with accepted construction standards and in accordance with properly prepared plans and specifications.\u201d\nDefendant responded with a 27 September 2004 \u201cMotion to Dismiss Pursuant to Rule 12(b)(6),\u201d asserting plaintiff was without standing to bring suit and that plaintiff\u2019s sole remedy was binding arbitration. Additionally, on 13 October 2004, defendant filed a \u201cMotion to Dismiss or Stay Pending Binding Arbitration,\u201d asserting the Declaration as well as a third-party warranty signed by individual homeowners required arbitration of disputes between the parties, and seeking dismissal of the complaint and an order compelling arbitration. On 3 November 2004, plaintiff sought amendment of its complaint to add as John Doe defendants those subcontractors who supplied labor, materials, and services in connection with the construction, installation, and provision of improvements to the community. Following a hearing, the trial court granted plaintiff\u2019s motion to amend, but ruled separately in the Order that \u201c[defendant\u2019s Motion to Dismiss and Motion to Stay and Compel Arbitration\u201d were denied. Defendant appeals.\nWe first consider plaintiff\u2019s challenge to those portions of defendant\u2019s appeal which implicate the issues of plaintiffs standing and the effect of the third-party warranty. Plaintiff contends defendant\u2019s arguments addressing these matters are interlocutory and not properly before this Court. As detailed below, we conclude plaintiff is correct.\nWith respect to the standing issue, we take note parenthetically at the outset of defendant\u2019s stipulations in the settled record on appeal that \u201c[a]ll parties were properly before the trial court\u201d and \u201c[t]he trial court had subject matter and personal jurisdiction over the parties.\u201d In light of these stipulations, defendant\u2019s arguments asserting plaintiff lacked standing to bring suit appear curious at best. See Creek Pointe Homeowner\u2019s Ass\u2019n v. Happ, 146 N.C. App. 159, 164, 552 S.E.2d 220, 225 (2001) (\u201cStanding is a necessary prerequisite to the court\u2019s proper exercise of subject matter jurisdiction.\u201d) (citations omitted), disc. review denied, 356 N.C. 161, 568 S.E.2d 191 (2002).\nIn addition, it is also unclear from the record whether the Order was directed at both motions filed by defendant. For example, the Order recites denial of defendant\u2019s \u201cMotion to Dismiss and Motion to Stay and Compel Arbitration,\u201d thereby only slightly paraphrasing the title of defendant\u2019s second motion, which did not expressly raise the issue of standing. Next, defendant reinforces such an interpretation by the terminology of its sole assignment of error, reading \u201c[t]he trial judge committed reversible error by denying Defendant\u2019s Motion [sic] Dismiss or Stay and Compel Arbitration,\u201d again in the main incorporating the title of defendant\u2019s second motion. Finally, plaintiff, without' specification, interjects that \u201cat least one of [defendant\u2019s] arguments [on appeal] was not even considered by the trial court.\u201d\nNonetheless, as \u201c[p]arties cannot stipulate to give a court subject matter jurisdiction when such jurisdiction does not exist[,]\u201d Alford v. Shaw, 327 N.C. 526, 533 n.1, 398 S.E.2d 445, 448 n.1 (1990) (citation omitted), and the issue of standing may be raised on direct appeal, Aubin v. Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878-79, disc. review denied, 356 N.C. 610, 574 S.E.2d 474 (2002), we address whether defendant\u2019s appeal of the trial court\u2019s ruling on this issue is interlocutory.\n\u201cA motion to dismiss a party\u2019s claim for lack of standing is tantamount to a motion to dismiss for failure to state a claim upon which relief can be granted according to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.\u201d Slaughter v. Swicegood, 162 N.C. App. 457, 464, 591 S.E.2d 577, 582 (2004) (citation omitted); see also Energy Investors Fund, L.P v. Metric Constructors, Inc., 351 N.C. 331, 525 S.E.2d 441 (2000). As our Supreme Court has stated,\n[ojrdinarily, a denial of a motion to dismiss under Rule 12(b)(6) merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on its merits. Thus, an adverse ruling on a Rule 12(b)(6) motion is in most cases an interlocutory order from which no direct appeal may be taken.\nState v. School, 299 N.C. 351, 355, 261 S.E.2d 908, 911 (1980) (citations omitted); see also Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 725, 518 S.E.2d 786, 787-88 (1999) (interlocutory order not immediately appealable unless appellant deprived of a substantial right or appeal properly certified pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54)). Moreover, upon appeal of an interlocutory order, it is not the responsibility of this Court to \u201cconstruct arguments for or find support for [the] appellant\u2019s right to appeal. . . .\u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Rather, it is the burden of the appellant to \u201cpresent appropriate grounds for th[e] acceptance of [its] interlocutory appeal....\u201d Id. at 379, 444 S.E.2d at 253.\nIn the case sub judice, the trial court did not certify the Order as immediately appealable pursuant to N.C.G.S. \u00a7 1A-1, Rule 54. Although conceding in its appellate brief that appeal of the Order is interlocutory, defendant maintains the trial court\u2019s ruling \u201caffects a substantial right of the defendant that may be lost if appeal is delayed.\u201d However, defendant continues merely by averring that \u201cin similar cases such as Creek Pointe, this Court has permitted the issue [of standing] to be considered before the final disposition of the case.\u201d Defendant misses the mark.\nWhile conceding standing of a homeowners\u2019 association to bring suit was an issue considered in Creek Pointe, we note the panel therein properly applied the rule that \u201cdetermination of whether a substantial right is affected is made on a case by case basis.\u201d 146 N.C. App. at 162, 552 S.E.2d at 223. Unlike the circumstance herein, the claims of the homeowners\u2019 association in Creek Pointe were actually dismissed by the trial court pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6), a context directly opposite to that considered in School, supra. Further, although interlocutory because other parties remained in the case, the Creek Pointe appeal was allowed to proceed under the substantial right exception because this Court concluded there existed a possibility of multiple trials against different members of the same group, thus raising the possibility of inconsistent verdicts. 146 N.C. App. at 162-63, 552 S.E.2d at 223-24 (citing Jenkins v. Wheeler, 69 N.C. App. 140, 316 S.E.2d 354, disc. review denied, 311 N.C. 758, 321 S.E.2d 136 (1984); Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982)).\nIn the case sub judice, however, all parties remain, and defendant does not appear to be deprived by the Order \u201cof any substantial right which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on its merits.\u201d School, 299 N.C. at 355, 261 S.E.2d at 911; see also Miller v. Swann Plantation Development Co., 101 N.C. App. 394, 395, 399 S.E.2d 137, 139 (1991) (the \u201c \u2018right itself must be substantial and the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment\u2019 \u201d) (citation omitted). In short, we dismiss as interlocutory defendant\u2019s attempt to raise the contention that plaintiff lacks standing to bring suit.\nWe also decline to invoke our discretionary power under N.C.R. App. R 2 (2005) to address this issue, bearing in mind that \u201cthis power is to be invoked . . . only on \u2018rare occasions\u2019 for such purposes as to prevent manifest injustice or to expedite a decision affecting the public interest.\u201d Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005) (citations omitted). Neither circumstance is present in the instant case.\nSimilarly, we reject as premature defendant\u2019s additional reliance upon plaintiff\u2019s alleged acceptance of a third-party warranty as a bar to suit. With respect to this contention, defendant acknowledges \u201c[a] motion to dismiss is ordinarily interlocutory[.]\u201d Notwithstanding, citing Consumers Power v. Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974), defendant insists \u201cthe [warranty] issue is so intertwined with the motion to arbitrate,\u201d this Court should exercise its \u201csupervisory jurisdiction\u201d to hear defendant\u2019s appeal on this issue. As with the issue of standing, we elect not to do so.\nIn Consumers Power, the trial court denied respondent\u2019s motion to dismiss petitioner\u2019s declaratory judgment action on grounds of lack of justiciability. Following a dissent regarding respondent\u2019s appeal to this Court, our Supreme Court declined to dismiss the appeal as interlocutory. Instead, the Court considered the case in view of 1) its \u201cbelie [f] that decision of the principal question presented would expedite the administration of justice,\u201d and 2) this Court\u2019s prior decision addressing the issue of justiciability, which represented a \u201cdecision] . . . upon its merits.\u201d Id. at 439, 206 S.E.2d at 182.\nAgain, neither situation described by the Supreme Court is present herein. The Order addressed neither the justiciability of the warranty issue between the parties nor the merits of their respective claims thereon. See id. Moreover, although we review the Order to the extent it involves a decision concerning the applicability of arbitration, see infra, we remain unpersuaded that immediate examination of defendant\u2019s warranty claims on the merits would \u201cexpedite the administration of justice.\u201d See Consumers Power, 285 N.C. at 439, 206 S.E.2d at 182; see also Reep, 360 N.C. at 38, 619 S.E.2d at 500. Accordingly, we dismiss as interlocutory defendant\u2019s argument that a third-party warranty bars plaintiff\u2019s suit.\nWe now turn to the issue of arbitration. Defendant maintains certain provisions in the Declaration require the parties to submit to binding arbitration. Therefore, concludes defendant, the Order was erroneous in refusing to stay the proceedings and require arbitration. We are compelled, however, to reverse and remand the Order because it fails to meet the requirements for appellate review.\nIt is well established that because \u201c[t]he right to arbitrate a claim is a substantial right which may be lost if review is delayed, ... an order denying arbitration is . . . immediately appealable.\u201d Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 118, 516 S.E.2d 879, 881, disc. review denied, 350 N.C. 832, 539 S.E.2d 288 (1999), cert. denied, 528 U.S. 1155, 145 L. Ed. 2d 1072 (2000). The question of whether a dispute is subject to arbitration is a question of law for the trial court, and its conclusion is reviewable de novo. Raspet v. Buck, 147 N.C. App. 133, 136, 554 S.E.2d 676, 678 (2001). The determination involves a two-pronged analysis in which the court \u201cmust ascertain both (1) whether the parties had a valid agreement to arbitrate, and also (2) whether \u2018the specific dispute between the parties falls within the substantive scope of that agreement.\u2019 \u201d Id. (citation omitted).\nThis Court has recently reversed and remanded an order denying arbitration which expressly failed to \u201cindicate whether [the trial court] determined if the parties were bound by [the] arbitration agreement.\u201d Ellis-Don Constr., Inc. v. HNTB Corp., 169 N.C. App. 630, 635, 610 S.E.2d 293, 296 (2005). The trial court\u2019s order therein stated in toto:\nThis Matter came before the Court on Defendant\u2019s Motion to Dismiss and on Defendant\u2019s Motion to Stay and Compel Arbitration. After reviewing all matters submitted and hearing arguments of counsel, the Court is of the opinion that both motions should be denied. It is therefore, ordered, adjudged and decreed that Defendant\u2019s Motion to Dismiss is denied and that Defendant\u2019s Motion to Stay and Compel Arbitration is Denied.\nId. at 634, 610 S.E.2d at 296.\nIn directing reversal and remand, this Court observed the order \u201ccontained neither factual findings that allow us to review the trial court\u2019s ruling, nor a determination whether an arbitration agreement exists between the parties.\u201d Id. at 635, 610 S.E.2d at 297. Accordingly, we were \u201cunable to determine the basis of the trial court\u2019s judgement.\u201d Id. at 635, 610 S.E.2d at 296; see also Barnhouse v. American Express Fin. Advisors, Inc., 151 N.C. App. 507, 509, 566 S.E.2d 130, 132 (2002) (\u201cThe order denying defendants\u2019 motion to stay proceedings does not state upon what basis the court made its decision, and as such, this Court cannot properly review whether or not the court correctly denied defendants\u2019 motion. Although it is possible to infer from the order denying defendants\u2019 motion that the trial court found that no arbitration agreement existed, other possibilities are equally likely.\u201d) (citation omitted).\nThe Order herein provides as follows:\nThe Court having considered the Defendants\u2019 Motions, briefs, and arguments of counsel for the Plaintiff . . . and for the Defendant, . . .; and it appearing to the Court that Defendants\u2019 Motions should be Denied;\nIt is THEREFORE, ORDERED, ADJUDGED and DECREED that Defendant\u2019s Motion to Dismiss and Motion to Stay and Compel Arbitration are DENIED.\nWe are unable to distinguish the foregoing from the order deemed insufficient in Ellis-Don. Therefore, because that decision as well as Barnhouse are binding upon us, see In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d), we reverse and remand the Order.\nOn remand, the trial court may hear evidence and further argument to the extent it determines in its discretion that either or both may be necessary and appropriate. Thereafter, the court is to enter a new order containing findings which sustain its determination regarding the validity and applicability of the arbitration provisions. See Barnhouse, 151 N.C. at 509 n.1, 566 S.E.2d at 132 n.1 (\u201c[0]ur holding does not require the trial court to make detailed and specific findings of fact regarding the agreement to arbitrate. Rather, the trial court\u2019s order must simply reflect whether or not a valid agreement to arbitrate exists between the parties.\u201d); see also Ellis-Don, 169 N.C. App. at 635, 610 S.E.2d at 297 (\u201cThe trial court\u2019s denial of defendant\u2019s motion to stay and compel arbitration is reversed and the matter is remanded for further factual findings and conclusions of law in accordance with this opinion.\u201d).\nDismissed in part; Reversed and Remanded in part.\nJudges WYNN and STEELMAN concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Timothy G. Sellers and Michelle Price Massingale, for 'plaintiff-appellee.", "DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for defendant-appellant." ], "corrections": "", "head_matter": "PINEVILLE FOREST HOMEOWNERS ASSOCIATION, Plaintiff v. PORTRAIT HOMES CONSTRUCTION CO., Defendant\nNo. COA05-365\n(Filed 3 January 2006)\n1. Appeal and Error\u2014 appealability \u2014 standing\u2014denial of motion to dismiss\nAn order denying defendant developer\u2019s motion to dismiss plaintiff homeowners association\u2019s claims for negligence and breach of warranties was interlocutory and not immediately appealable.\n2. Appeal and Error\u2014 appealability \u2014 issue not addressed below\nDefendant\u2019s argument that a third-party warranty barred plaintiff\u2019s suit was dismissed as interlocutory where the denial of defendant\u2019s motion to dismiss addressed neither the justicia-bility of the warranty issue between the parties nor the merits of their claims.\n3. Appeal and Error\u2014 order denying arbitration \u2014 sufficiency of findings for review\nAn order in which the trial court denied a stay and refused to require arbitration was remanded where the order did not meet the requirements for appellate review. The new order must contain findings which sustain its determination of the validity and applicability of the arbitration provisions.\nAppeal by defendant from order entered 20 December 2004 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 November 2005.\nSellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Timothy G. Sellers and Michelle Price Massingale, for 'plaintiff-appellee.\nDeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for defendant-appellant." }, "file_name": "0380-01", "first_page_order": 414, "last_page_order": 421 }