{ "id": 4170488, "name": "MICHAEL J. PRESSLER, Plaintiff-Appellee v. DUKE UNIVERSITY and JOHN F. BURNESS, Defendants-Appellants", "name_abbreviation": "Pressler v. Duke University", "decision_date": "2009-09-01", "docket_number": "No. COA08-859", "first_page": "586", "last_page": "593", "citations": [ { "type": "official", "cite": "199 N.C. App. 586" } ], "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": "907 F.2d 1396", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10541552 ], "year": 1990, "pin_cites": [ { "page": "1400" } ], "opinion_index": 0, "case_paths": [ "/f2d/907/1396-01" ] }, { "cite": "867 F.2d 809", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10530236 ], "year": 1989, "pin_cites": [ { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/f2d/867/0809-01" ] }, { "cite": "96 F.3d 88", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7649340 ], "year": 1996, "pin_cites": [ { "page": "92", "parenthetical": "quoting Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir. 1989" } ], "opinion_index": 0, "case_paths": [ "/f3d/96/0088-01" ] }, { "cite": "460 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188858 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "24-25" }, { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/us/460/0001-01" ] }, { "cite": "9 U.S.C. \u00a7\u00a7 1-16", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2006, "opinion_index": 0 }, { "cite": "562 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "66" }, { "page": "66", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130955 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "645" }, { "page": "645", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0642-01" ] }, { "cite": "554 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "678", "parenthetical": "internal citations and quotations 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", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0133-01" ] }, { "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": "521 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "709", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" } ], "opinion_index": 0 }, { "cite": "351 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155764 ], "year": 1999, "pin_cites": [ { "page": "174-75", "parenthetical": "quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0172-01" ] }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 714, "char_count": 16253, "ocr_confidence": 0.75, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3934225508900326 }, "sha256": "d0d20051c04036beb3d994fe49a0281399dfce6536c7f5a45893382ab4ace6f8", "simhash": "1:0f2ee14fbf6e8004", "word_count": 2501 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "MICHAEL J. PRESSLER, Plaintiff-Appellee v. DUKE UNIVERSITY and JOHN F. BURNESS, Defendants-Appellants" ], "opinions": [ { "text": "CALABRIA, Judge.\nDuke University (\u201cDuke\u201d) and John F. Bumess (\u201cBumess\u201d), Senior Vice President for Public Affairs and Governmental Relations at Duke (collectively \u201cdefendants\u201d), appeal the trial court\u2019s order denying their motion to stay proceedings pending arbitration. The trial court ruled that Michael J. Pressler\u2019s (\u201cplaintiff\u2019) obligation to arbitrate his claims against defendants for slander and libel was voided by the mutual release and settlement agreement which was signed by both parties prior to commencement of the litigation. We affirm the trial court.\nIn 1990, Duke hired plaintiff as head coach of Duke\u2019s men\u2019s lacrosse team (\u201cDuke lacrosse team\u201d) and, by annual renewal of his contract with Duke, he was continuously employed as head coach until 2006. In June 2005, plaintiff renewed his employment contract with Duke for a period of three years, from 1 June 2005 to 30 June 2008. The contract stated that his employment was \u201csubject to the policies and regulations of Duke University as may exist from time to time.\u201d This provision incorporated by reference the Duke Dispute Resolution Policy (\u201cthe policy\u201d), which provided that all disputes that arose from plaintiff\u2019s employment.would be subject to arbitration.\nThe policy states:\nAny claim arising out of or relating to employment policies shall be settled in accordance with this procedure. The arbitration step of this procedure shall be governed by the United States Arbitration Act. Both the staff member and Duke are required to utilize this procedure to resolve disagreements falling within the scope of this procedure.\nThe provision of the policy entitled \u201cScope\u201d establishes that the policy \u201capplies to any application, meaning or interpretation of personnel policies or procedures as they affect work activities. Any claim based in whole or in part on federal, state or local laws whether statutory or common law shall be addressed through this procedure.\u201d\nThe policy further states, in relevant part, as follows:\nThe provisions of this dispute resolution procedure shall be deemed to be the entire agreement to arbitrate between the parties and shall supersede and void any other agreement or rules, which are materially inconsistent. Neither the arbitrator nor the American Arbitration Association shall have the authority to add to, subtract from, or otherwise modify Duke policy, including but not limited to, this Dispute Resolution Procedure.\nIn March 2006, the Duke lacrosse team was the subject of widely publicized allegations. At Duke\u2019s request, plaintiff resigned from his position as head coach of the Duke lacrosse team. After a series of negotiations, the parties resolved their dispute regarding the termination of plaintiff\u2019s employment by entry of a settlement. On 21 March 2007, the parties entered into a \u201cMutual Release and Settlement Agreement\u201d (\u201cthe mutual release\u201d), which states, in relevant part:\nThis agreement is entered into . . . for the purpose of clarifying the conditions of Pressler\u2019s separation from employment. . . and in order to finally, fully, and amicably resolve all issues and controversies arising out of the termination of said employment such that the parties may put all such matters behind them for their mutual benefit.\nWhereas,. . . Pressler and Duke wish to cancel all earlier agreements and reach a final settlement and resolution of all matters regarding Pressler\u2019s separation from employment with Duke . . .;\nNOW, THEREFORE, Pressler and Duke agree as follows:\n1. Any obligations of the parties arising from the 2005 Employment Contract, and/or the previous agreements of the parties regarding separation of employment that are remaining and unfulfilled as of the execution of this Agreement are extinguished, cancelled and declared void.\n4. Duke and Pressler agree that neither they nor their agents, principals or representatives will make disparaging or defamatory comments regarding the other party, it being the intent of the parties that both Duke and Pressler will comment where possible, favorably one upon the other and if inquiry is made, each shall indicate that after difficult circumstances the parties were able to amicably resolve the circumstances of separation.\n8. Duke and Pressler agree that this Mutual Release and Settlement Agreement is the final agreement between them as to his employment with Duke, his separation from employment with Duke, and any other issue arising there from or relating thereto.\n9. Duke and Pressler acknowledge that they enter into this agreement voluntarily and with the full opportunity for the advice of counsel.\nNone of the terms in the mutual release provided for arbitration of any claims that arose after the effective date of the mutual release.\nOn 23 January 2008, plaintiff filed a complaint against defendants alleging slander and libel. The allegations contained in the complaint were that Bumess, as Senior Vice President for Public Affairs and Government Relations at Duke, \u201cknowingly made false, defamatory and slanderous statements about [plaintiff] to a reporter, statements that were then published to the public on 9 April 2007 in Newsday and later posted on a website, www.newsday.com.\u201d Plaintiff also alleged defendants made a false, defamatory and slanderous statement about plaintiffs employment to The Associated Press on 7 June 2007.\nOn 11 March 2008, defendants moved to stay proceedings pending arbitration or, alternatively, to dismiss for lack of subject matter jurisdiction or improper venue. Defendants contend plaintiffs claims are subject to the arbitration agreement contained in the policy.\nOn 23 April 2008, the trial court denied defendants motion to stay proceedings pending arbitration on the basis that \u201cany obligation of Plaintiff to arbitrate any claims alleged against the defendants in this lawsuit is extinguished, cancelled and voided by the Mutual Release and Settlement Agreement...\u201d Defendants appeal.\nI. Interlocutory Anneal\nDefendants appeal an interlocutory order. \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57S.E.2d 377, 381 (1950).\nAppeal of an interlocutory order is appropriate under two circumstances:\nFirst, the trial court may certify that there is no just reason to delay the appeal after it enters a final judgment as to fewer than all of the claims or parties in an action. N.C.G.S. 1A-1, Rule 54(b) [2007]. Second, a party may appeal an interlocutory order that affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.\nDep\u2019t of Transp. v. Rowe, 351 N.C. 172, 174-75, 521 S.E.2d 707, 709 (1999) (quoting Veazey, 231 N.C. at 362, 57 S.E.2d at 381). This Court has previously held that \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). Pursuant to Martin, we review defendants interlocutory appeal.\nII. Standard of Review for Motion for Stay of Arbitration\nIn Raspet v. Buck, this Court established the standard of review for arbitration cases as follows:\nThe question of whether a dispute is subject to arbitration is an issue for judicial determination. A trial courts conclusion as to whether a particular dispute is subject to arbitration is a conclusion of law, reviewable de novo by the appellate court. [The determination of] [w]hether a dispute is subject to arbitration involves a two pronged analysis; the court must ascertain both (1) whether the parties had a valid agreement to arbitrate, and also (2) whether \u201cthe specific dispute falls within the substantive scope of that agreement.\u201d\n147 N.C. App. 133, 136, 554 S.E.2d 676, 678 (2001)(internal citations and quotations omitted). Sciolino v. TD Waterhouse Investor Servs., Inc., 149 N.C. App. 642, 645, 562 S.E.2d 64, 66 (2002).\nThe 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. Accordingly, upon appellate review, we must determine whether there is evidence in the record supporting the trial courts findings of fact and if so, whether these findings of fact in turn support the conclusion that there was no agreement to arbitrate.\nIII. Arbitration Agreement and Mutual Release\nDefendants argue the policy constitutes a valid and enforceable arbitration agreement which survived both plaintiffs separation from employment and the execution of the mutual release. Plaintiff does not contest that the policy contains a valid and enforceable arbitration agreement, but argues any agreement contained in the policy was extinguished by the mutual release. It must therefore be determined whether the mutual release extinguished any prior agreements which provided for arbitration. \u201cBefore a dispute can be settled by arbitration, there must first exist a valid agreement to arbitrate. As the moving party, defendants bear the burden of demonstrating that the parties mutually agreed to arbitrate their dispute.\u201d Sciolino v. TD Waterhouse Investor Servs., Inc., 149 N.C. App. 642, 645, 562 S.E.2d 64, 66 (2002) (internal citations omitted). Thus, defendants have the burden of showing that there remains a mutual agreement to arbitrate the dispute, even after entry of the mutual release.\nDefendants argue that\nPressler and Duke are parties to a valid and enforceable arbitration agreement that survives Pressler\u2019s separation from employment and that survives the execution of the Mutual Release and Settlement Agreement. The subject matter of Pressler\u2019s defamation claims are about Pressler\u2019s employment at Duke. The arbitration agreement covers Pressler\u2019s defamation claims against Duke and Burness because those statements] are about his employment. The Mutual Release and Settlement Agreement did not express any intent to avoid the requirement to arbitrate claims arising out of Pressler\u2019s employment, and there is no evidence of the parties\u2019 intent to do so.\nDefendants argue at length regarding the applicability of the Federal Arbitration Act (\u201cFAA\u201d), 9 U.S.C. \u00a7\u00a7 1-16 (2006), to the parties\u2019 prior arbitration agreements. According to defendants, if the FAA applies, \u201c[federal policy favors arbitration agreements.\u201d As to interpretation of the parties\u2019 agreement, defendants argue that \u201c[t]he United States Supreme Court has explained that under the FAA, \u2018any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation o waiver, delay, or a like defense to arbitrability.\u2019 \u201d Moses H. Cone Mem\u2019l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,24-25, 74 L. Ed. 2d 765, 785 (1983). \u201cTo that end, the \u2018heavy presumption of arbitrability requires that when the scope of the arbitration clause is open to question, a court must decide the question in favor of arbitration.\u2019 \u201d Am. Recovery Corp.v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92 (4th Cir. 1996) (quoting Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir. 1989).\nDefendants also note that many prior cases in \u201cfederal and state courts in North Carolina have upheld the validity and enforce ability of arbitration agreements between Duke and its exempt and nonexempt employees.\u201d However, the question here is not whether Duke and Pressler ever had a valid, enforceable arbitration agreement. There is no dispute that prior to the mutual release, they did have such an agreement. The issue is whether the mutual release rescinded the arbitration agreement.\nDespite the policy of construing any doubts regarding an arbitration agreement in favor of arbitration, here there is no doubt or question regarding the language of the mutual release. The parties clearly stated their mutual intent that the mutual release fully and finally resolve their disputes and that \u201call earlier agreements\u201d be cancelled (emphasis added). Defendants essentially argue that when the mutual release referred to \u201call earlier agreements,\u201d this did not really mean all earlier agreements, as the mutual release did not specifically mention the Dispute Resolution Policy, but addressed only \u201c[a]ny obligations of the parties arising from the 2005 Employment Contract, and/or the previous agreements of the parties regarding separation of employment.\u201d Defendants contend that \u201cPressler\u2019s obligation to arbitrate does not arise from the 2005 Employment Agreement or any previous agreements of the parties regarding Pressler\u2019s separation of employment. Rather, Pressler\u2019s obligation to arbitrate arises from the [policy].\u201d According to defendants, the policy constitutes \u201cthe entire agreement to arbitrate between the parties\u201d with respect to the subject of arbitration. However, plaintiff would not have been subject to the policy but for the 2005 Employment Contract, in which plaintiff agreed his employment was subject to the policy. The mutual release addresses \u201call earlier agreements,\u201d and whether the policy was a part of the 2005 Employment Contract or not, surely it was an \u201cearlier agreement\u201d between the parties which would be encompassed by the term \u201call.\u201d\nIn effect, this was an agreement of rescission under which each party agreed to discharge all of the other party\u2019s remaining duties under the existing contracts, including the duty to arbitrate. It could also be characterized as a mutual release, consistent with the title of the document, \u201cMutual Release and Settlement Agreement.\u201d There was no term in the mutual release that provided for arbitration of any claims that arose after the effective date of the mutual release; thus, the parties abandoned arbitration as a means of future dispute resolution. See Bokunewicz v. Purolator Prods., Inc., 907 F.2d 1396, 1400 (3d Cir. 1990). Finally, since the parties declared the prior agreements, which incorporated by implication the mutual release to arbitrate, \u201cvoid,\u201d the mutual release to arbitrate was of no legal effect.\nPlaintiffs claims against defendants arose from alleged defamatory and libelous actions by defendants in June 2007, after the execution of the mutual release. Therefore, under either a theory of agreement of rescission or a theory of mutual release, plaintiff is not bound to resolve his dispute by arbitration with defendants. Plaintiffs proceedings in litigation are not subject to a stay. We affirm the trial court\u2019s interlocutory order denying defendants\u2019 motion to stay proceedings pending arbitration.\nAffirmed.\nJudges ELMORE and STROUD concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Twiggs, Beskind, Strickland & Rabenau, RA., by Jerome P. Trehy, Jr., Donald R. Strickland, and Jesse H. Rigsby, TV, for plaintiff-appellee.", "Fulbright & Jaworski L.L.P., by John M. Simpson, and Cranfill, Sumner & Hartzog, L.L.P., by Dan M. Hartzog, for defendants-appellants." ], "corrections": "", "head_matter": "MICHAEL J. PRESSLER, Plaintiff-Appellee v. DUKE UNIVERSITY and JOHN F. BURNESS, Defendants-Appellants\nNo. COA08-859\n(Filed 1 September 2009)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 arbitration \u2014 substantial right\nAn order denying arbitration is immediately appealable because it involves a substantial right which may be lost if appeal is delayed.\n2. Arbitration and Mediation\u2014 motion to stay proceedings denied \u2014 rescission\u2014mutual release\nThe trial court did not err by denying defendants\u2019 motion to stay proceedings against defendants for slander and libel pending arbitration because the parties had stated in a release agreement their mutual intent that the release fully and finally resolved their disputes and that all earlier agreements be can-celled. Under either a theory of rescission or mutual release, plaintiff was not bound to resolve his dispute by arbitration with defendants.\nAppeal by defendants from order entered 23 April 2008 by Judge Howard E. Manning, Jr., in Durham County Superior Court. Heard in the Court of Appeals 14 January 2009.\nTwiggs, Beskind, Strickland & Rabenau, RA., by Jerome P. Trehy, Jr., Donald R. Strickland, and Jesse H. Rigsby, TV, for plaintiff-appellee.\nFulbright & Jaworski L.L.P., by John M. Simpson, and Cranfill, Sumner & Hartzog, L.L.P., by Dan M. Hartzog, for defendants-appellants." }, "file_name": "0586-01", "first_page_order": 612, "last_page_order": 619 }