Opinion
No. COA12–472.
2013-04-2
Donald L. HAYNESWORTH, Plaintiff, v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., and Ann E. Dodd, Defendants.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellant. K & L Gates LLP, by Amie Flowers Carmack and Douglas W. Britt, for defendants-appellees.
Appeal by plaintiff from order entered 15 December 2011 by Judge A. Robinson Hassell in Guilford County Superior Court. Heard in the Court of Appeals 15 November 2012. Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L. Kennedy, III and Harvey L. Kennedy, for plaintiff-appellant. K & L Gates LLP, by Amie Flowers Carmack and Douglas W. Britt, for defendants-appellees.
GEER, Judge.
Plaintiff Donald L. Haynesworth appeals from the trial court's order granting defendants American Express Travel Related Services Company, Inc. and Ann E. Dodd's motion to compel arbitration and denying plaintiff's motion for a preliminary injunction. Because plaintiff's appeal is interlocutory and does not involve a substantial right that will be lost without an immediate appeal, we dismiss the appeal.
Facts
On 1 September 2011, plaintiff filed an action against defendants alleging wrongful discharge from employment, tortious interference with contractual relations, and intentional infliction of emotional distress. Prior to his termination, plaintiff was an employee of American Express for over 30 years. Plaintiff's claims are based upon allegations that Ms. Dodd, plaintiff's superior at American Express, engaged in racial discrimination and harassment towards plaintiff and ultimately caused American Express to wrongfully discharge plaintiff.
On 26 October 2011, plaintiff filed a motion for a preliminary injunction. Plaintiff alleged that American Express had, in 2007, unilaterally instituted an employment arbitration policy purportedly applicable to all employees, that plaintiff never signed an arbitration agreement, and that defendants' attempt to enforce the arbitration policy against plaintiff would violate plaintiff's right to a jury trial provided by the North Carolina Constitution. Plaintiff asked the trial court to enjoin American Express from compelling plaintiff to arbitrate his claims.
On the next day, 27 October 2011, defendants filed a motion to compel arbitration. Defendants alleged that in 2007, American Express revised its employment arbitration policy to cover all employees, that employees had an option to opt out of coverage under the arbitration policy, that plaintiff assented to arbitration by not opting out, and that plaintiff's claims against defendants were covered by the arbitration agreement.
On 15 December 2011, the trial court entered an order compelling arbitration and denying plaintiff's motion for a preliminary injunction. The trial court concluded, among other things, that a binding arbitration agreement existed between plaintiff and American Express, that plaintiff assented to the agreement because he was given a meaningful opportunity to opt out and declined to do so, that the agreement did not violate the North Carolina Constitution and was not unconscionable, and that plaintiff's claims against American Express and Ms. Dodd fell within the scope of the agreement. Plaintiff appealed to this Court.
Discussion
Initially, we must address defendants' motion to dismiss plaintiff's appeal as interlocutory. “An 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.” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Here, the trial court's order compelling arbitration and denying plaintiff's motion for a preliminary injunction is interlocutory. See Bluffs, Inc. v. Wysocki, 68 N.C.App. 284, 285, 314 S.E.2d 291, 293 (1984) ( “An order compelling the parties to arbitrate is an interlocutory order.”); Iredell Digestive Disease Clinic, P.A. v. Petrozza, 92 N.C.App. 21, 24, 373 S.E.2d 449, 451 (1988) (“A trial court's ruling on a party's motion for a preliminary injunction is an interlocutory order.”), aff'd per curiam, 324 N.C. 327, 377 S.E.2d 750 (1989).
“Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp ., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, “immediate appeal is available from an interlocutory order or judgment which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (internal quotation marks omitted). “ ‘It is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal ... and not the duty of this Court to construct arguments for or find support for appellant's right to appeal [.]’ “ Griessel v. Temas Eye Ctr., P.C., 199 N.C.App. 314, 316, 681 S.E.2d 446, 447 (2009) (quoting Slaughter v. Swicegood, 162 N.C.App. 457, 463, 591 S.E.2d 577, 581 (2004)).
Plaintiff first argues that the portion of the order compelling arbitration affects a substantial right because, should plaintiff's appeal be dismissed, plaintiff's right to a jury trial, provided in Article I, Section 25 of the Constitution of North Carolina, “in all likelihood would be lost.” This Court has, however, consistently held that an order compelling arbitration does not affect a substantial right. See Bullard v. Tall House Bldg. Co., 196 N.C.App. 627, 635–36, 676 S.E.2d 96, 102 (2009) (“[A]n order granting a motion to compel arbitration ... is explicitly recognized not to have a right of appeal within our case law.”); Bluffs, 68 N.C.App. at 285, 314 S.E.2d at 293 (“An order compelling the parties to arbitrate is an interlocutory order. We do not believe it affects a substantial right and works an injury to the appellant if not corrected before an appeal from a final judgment.”). See also9 U.S.C. § 16(b)(3) (2006) (providing, for purposes of the Federal Arbitration Act, that generally “an appeal may not be taken from an interlocutory order ... compelling arbitration”).
We are bound by prior decisions of this Court holding that an order compelling arbitration does not affect a substantial right that will be lost absent an immediate appeal. Dismissal of the appeal does not mean that plaintiff will not be able to obtain appellate review of the order compelling arbitration. Plaintiff will be entitled to seek review after arbitration and, if he succeeds on appeal, he will then be able to seek a jury trial. See Bluffs, 68 N.C.App. at 285, 314 S.E.2d at 293 (explaining that “[f]ollowing the conclusion of arbitration, a party may apply to the court for an order either confirming, vacating, modifying or correcting an arbitration award,” that, “[u]pon the entry of such an order, the trial court must enter a judgment or decree in conformity with such order[,]” and that “[a] dissatisfied party then ... has a right of appeal from the trial court's order or judgment” (emphasis added)).
Plaintiff next argues that the portion of the order denying his motion for a preliminary injunction affects a substantial right because, he contends, “this Court has routinely allowed review of orders granting or denying injunctions which directly impact the employee's ability to earn a living,” and plaintiff “lost his career as a supervisor with American Express.” Plaintiff additionally argues that the order affected a substantial right because it took away his right to a jury trial.
Plaintiff, however, sought only to “enjoin American Express from forcing the Plaintiff into arbitration.” Thus, as argued by defendants, plaintiff's motion for a preliminary injunction “was more in the nature of a preemptive opposition to [defendants'] Motion to Compel Arbitration than a true request for any injunctive relief.” Defendants contend that “[a]llowing immediate review of this type of motion for preliminary injunction would entirely undermine the clear rule of [ Bluffs ] and its progeny that orders compelling arbitration are not immediately appealable.” We agree.
“North Carolina has a strong public policy favoring arbitration.” N.C. Farm Bureau Mut. Ins. Co. v. Sematoski, 195 N.C.App. 304, 308, 672 S.E.2d 90, 93 (2009). That policy, and the rationale underlying Bluffs and its progeny, would be completely undercut if parties opposed to arbitration could seek immediate appeal from orders compelling arbitration by the procedural mechanism of filing a motion for a preliminary injunction blocking arbitration. See9 U.S.C. § 16(b)(4) (providing as to arbitration agreements governed by the Federal Arbitration Act that, generally, “an appeal may not be taken from an interlocutory order ... refusing to enjoin an arbitration that is subject to this title”).
Plaintiff nonetheless cites Redlee/SCS, Inc. v. Pieper, 153 N .C.App. 421, 422–23, 571 S.E.2d 8, 10–11 (2002) (allowing interlocutory appeal of preliminary injunction enforcing covenant not to compete), and Analog Devices, Inc. v. Michalski, 157 N.C.App. 462, 465, 579 S.E.2d 449, 452 (2003) (holding denial of company's motion for preliminary injunction was immediately appealable because of danger of irreparable harm from potential misappropriation of company's trade secrets). Neither Redlee nor Analog Devices involved a preliminary injunction seeking to bar a party from enforcing an arbitration agreement and, therefore, neither case is applicable here.
Consequently, we hold plaintiff has failed to show that the interlocutory order granting defendants' motion to compel arbitration and denying plaintiff's motion for a preliminary injunction affects a substantial right that would be lost without an immediate appeal. Plaintiff's appeal is, therefore, dismissed.
Dismissed. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).