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  "name": "CHANDA A. GRIESSEL, M.D., Plaintiff v. TEMAS EYE CENTER, P.C. and GREGORY P. TEMAS, M.D., Defendants",
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    "judges": [
      "Judges BRYANT and STEELMAN concur."
    ],
    "parties": [
      "CHANDA A. GRIESSEL, M.D., Plaintiff v. TEMAS EYE CENTER, P.C. and GREGORY P. TEMAS, M.D., Defendants"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nChanda A. Griessel, M.D. (plaintiff), sued Temas Eye Center, PC. (TEC), and Gregory P. Temas, M.D. (together, defendants), for fraud, breach of contract, quantum meruit, violation of the North Carolina Wage and Hour Act, and declaratory judgment. Defendants filed motions to dismiss pursuant to Rule 12(b)(6), to stay the action and refer to arbitration, and \u201cto return records and confidential material.\u201d The trial court denied all three motions by order filed 3 June 2008. Defendants now appeal.\nPlaintiff is a licensed ophthalmologist who was recruited by defendants to work at TEC during the summer of 2006. According to plaintiffs complaint, defendants made numerous oral and written representations to her in their attempt to obtain her services. These representations included a $125,000.00 annual base salary, a $30,000.00 signing bonus, and bonuses based upon \u201ca percentage of her actual production and collections exceeding her annual base salary[.]\u201d On 24 July 2006, plaintiff entered into an employment contract with defendants. According to the complaint,\nDuring 2007, Dr. Griessel became aware that, in her professional opinion, Defendant TEC, as described more particularly herein, was improperly billing and submitting claims to patients and third-party payors for services provided by Dr. Griessel, Dr. Temas, and TEC; that Defendant TEC was billing third-party payors including Medicare under Dr. Temas\u2019 own provider number for services provided by Dr. Griessel; that Defendant TEC was collecting and retaining amounts in excess of that to which it was entitled for-services rendered; and that Defendants were using improper accounting methods for their wrongful benefit and unjust enrichment, including without limitation, crediting Dr. Temas for procedures performed by Dr. Griessel in a manner that reduced the apparent amount of actual collections credited by Dr. Griessel under her \u201cincentive salary\u201d bonus agreement with Defendant TEC.\nDefendant tendered a notice of resignation on 1 October 2007 and ceased providing services to TEC on 1 December 2007. According to the complaint, after 1 December 2007, defendants told inquiring patients and referral sources that plaintiff had simply \u201cfailed to show up to work\u201d and that they did not have her contact information.\nWe first consider defendants\u2019 arguments that the trial court erred by denying their motions to dismiss and their motion to compel plain-' tiff to return documents to defendants. We do not reach the merits of these appeals because they are interlocutory and not properly before us. \u201cTypically, the denial of a motion to dismiss is not immediately appealable to this Court because it is interlocutory in nature.\u201d Reid v. Cole, 187 N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007) (quotations and citation omitted). In the absence of any final judgment, we may hear an interlocutory appeal if the order affects a substantial right. Id. at 263, 652 S.E.2d at 719-20. However, \u201cthe party seeking review of the interlocutory order still must show that it affects a substantial right[.]\u201d Id. at 263, 652 S.E.2d at 719. \u201cIt is the appellant\u2019s burden to present appropriate grounds for this Court\u2019s acceptance of an interlocutory appeal. . . and not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal[.]\u201d Slaughter v. Swicegood, 162 N.C. App. 457, 463, 591 S.E.2d 577, 581 (2004) (quotations and citations omitted). Although defendants admit that the order is interlocutory, they do not argue that it affects a substantial right. Though we need not extend ourselves this far, it is not apparent to us that the trial court\u2019s denial of defendants\u2019 12(b)(6) motion affects a substantial right. Accordingly, we dismiss that portion of defendants\u2019 appeal as interlocutory.\nFor similar reasons, we dismiss defendants\u2019 appeal from the trial court\u2019s denial of the motion to compel plaintiff to return records and confidential material. Defendants have not argued that the order denying this motion affects a substantial right and none is apparent to us.\nWe next reach defendants\u2019 contention that the trial court improperly denied their motion to compel arbitration. The employment contract between plaintiff and defendants contains an arbitration clause. The clause states, in relevant part:\nUpon written demand of either party, any controversy or claim arising out of, in connection with, or related to this Agreement or breach thereof . . . shall be settled by arbitration .... The North Carolina Uniform Arbitration Act, as contained in Chapter 1, Article 45A, as amended of [sic] the North Carolina General Statutes, shall apply to this agreement to arbitrate.\nDefendants argue that the trial court should have stayed the court proceedings and compelled arbitration based upon this clause.\nWe note first that \u201c[although an order denying a motion to stay pending arbitration is interlocutory, it is immediately appealable under N.C. Gen. Stat. \u00a7 l-277(a) because it affects a substantial right.\u201d Gemini Drilling & Found., LLC v. Nat\u2019l Fire Ins. Co., 192 N.C. App. 376, 381, 665 S.E.2d 505, 508 (2008) (citations omitted). Accordingly, we reach the merits of defendants\u2019 argument: that it was reversible error for the trial court to deny their motion to compel arbitration without making findings of fact.\nWe recently reiterated that an order denying a motion to compel arbitration must include findings of fact as to \u201cwhether the parties had a valid agreement to arbitrate\u201d and, if so, \u201cwhether the specific dispute falls within the substantive scope of that agreement.\u201d U.S. Tr. Co. v. Stanford Gr. Co., 199 N.C. App. \u2014,\u2014, S.E.2d\u2014,\u2014(2009) (quoting Ellis-Don Constr. v. HNTB Corp., 169 N.C. App. 630, 633, 610 S.E.2d 293, 296 (2005)). Here, the trial court made no finding of fact as to the existence of a valid agreement to arbitrate. Accordingly, we must reverse the trial court\u2019s order and remand for entry of findings of fact consistent with our opinion in United States Trust Company.\nDismissed in part, reversed and remanded in part.\nJudges BRYANT and STEELMAN concur.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Nelson Mullins Riley & Scarborough LLP, by Mark A. Stafford and Candace S. Friel, for plaintiff",
      "Douglas S. Harris for defendants."
    ],
    "corrections": "",
    "head_matter": "CHANDA A. GRIESSEL, M.D., Plaintiff v. TEMAS EYE CENTER, P.C. and GREGORY P. TEMAS, M.D., Defendants\nNo. COA08-1139\n(Filed 18 August 2009)\n1. Appeal and Error\u2014 denial of motion to dismiss\u2014 interlocutory\nThe' trial court\u2019s denial of a Rule 12(b)(6) motion to dismiss did not affect a substantial right and the appeal was dismissed.\n2. Appeal and Error\u2014 denial of motion to return records \u2014 interlocutory\nThe denial of a motion to compel plaintiff to return records and confidential material was an interlocutory order, defendants did not argue that the denial affected a substantial right, arid no substantial right was apparent to the appellate court.\n3. Appeal and Error\u2014 denial of motion to compel arbitration \u2014 substantial right affected \u2014 immediately appealable\nThe denial of a motion to compel arbitration under an employment contract without findings affected a substantial right and was immediately appealable.\n4. Arbitration and Mediation\u2014 denial of motion to compel arbitration \u2014 no findings \u2014 remanded\nThe denial of a motion to compel arbitration under an employment contract was remanded where there was' no finding as to the existence of a valid agreement to arbitrate.\nAppeal by defendants from order entered 3 June 2008 by Judge A. Moses Massey in Forsyth County Superior Court. Heard in the Court of Appeals 25 February 2009.\nNelson Mullins Riley & Scarborough LLP, by Mark A. Stafford and Candace S. Friel, for plaintiff\nDouglas S. Harris for defendants."
  },
  "file_name": "0314-01",
  "first_page_order": 340,
  "last_page_order": 343
}
