Opinion
No. COA07-233.
Filed February 19, 2008.
Carteret County No. 06 CVS 507.
Appeal by defendants from order entered 21 August 2006 by Judge Gary E. Trawick in Carteret County Superior Court. Heard in the Court of Appeals 19 September 2007.
Mason Mason, P.A., by L. Patten Mason, for plaintiff. Wheatly, Wheatly, Weeks Lupton, P.A., by Claud R. Wheatly, III, for defendants.
In 1989, Terminix (defendants) entered into a contract for termite protection with James E. Roberson, Jr. Mr. Roberson passed away in 1998, after which his widow, Patricia A. Roberson (plaintiff), continued making payments under the contract and receiving services from defendants. On 10 May 1999, defendants' agents approached plaintiff and informed her that there was a new termite protection system available. The agents told plaintiff that she needed to sign some papers to authorize the new treatment, that there was no need for her to read them, and that they were in a hurry and required her to sign the papers immediately. The agents assured plaintiff that "the paperwork was only for the Company to use to show that she had authorized Terminix to apply the new treatment to her house." Plaintiff therefore signed the papers, and defendants' agents began using the new system.
Unbeknownst to plaintiff, the paperwork was a contract that included, among other things, a limitation on damages and agreement to arbitrate any disputes. Indeed, plaintiff did not discover this information until, following a hurricane, she discovered that there was extensive termite damage to her roof.
There is some question as to whether plaintiff's payments for services were current at that time, and, if not, which party was to blame. These questions do not bear on the issues before this Court, however, and as such we will not delve into them.
Plaintiff brought suit, and defendants moved the trial court for an order to compel arbitration. The trial court denied defendants' motion, and defendants appealed. Having conducted a thorough review of the briefs and records, we affirm the trial court's order.
Defendants argue strenuously that plaintiff should have read the contract, that her failure to do so does not excuse her from abiding by its terms, and that the trial court erred in denying their motion. Looking past defendants' multiple failures to follow our Rules of Appellate Procedure and at times incomprehensible brief, we exercise our discretion and review the merits of defendants' appeal. See State v. Hart, 361 N.C. 309, 313, 644 S.E.2d 201, 203 (2007) (clarifying that the fact that "an appeal is `subject to' dismissal for rules violations, [does] not mean that an appeal shall be dismissed for any violation"). We discern the following two inquiries from our case law: "(1) whether the parties had a valid agreement to arbitrate, and also (2) whether the specific dispute falls within the substantive scope of that agreement." Revels v. Miss Am. Org., 165 N.C. App. 181, 188, 599 S.E.2d 54, 59 (2004) (quotations and citations omitted). The trial court never reached the second inquiry, correctly ruling that the contract, including the arbitration language, was void as the result of fraud in the inducement.
Including but not limited to an argumentative facts section in violation of Rule 28(b)(5) and a failure to provide a standard of review as required by Rule 28(b)(6). Violation of either rule may "subject an appeal to dismissal." Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999).
At the outset, we note that an order denying, arbitration, although interlocutory, is immediately, appealable because it involves a substantial right, which might be lost if appeal is delayed. The first, task of a court asked to compel arbitration of a, dispute is to determine whether the parties agreed to, arbitrate that dispute.
Id. at 186, 599 S.E.2d at 57-58 (quotations, citations, and alterations omitted).
In this case, plaintiff presented the trial court with evidence, in the form of a sworn affidavit, that defendants' agents actively misrepresented the purpose of the paperwork that she signed. The trial court found these allegations as fact, and based on those findings, concluded as a matter of law that "the actions of the Defendant's agents wrongly induced the Plaintiff to sign the contract and the Plaintiff was induced to sign the contract by false and fraudulent representations of the Defendant's agents." The court therefore concluded that the contract was void. The trial court's refusal to compel arbitration was therefore appropriate, and defendants' arguments on appeal are without merit.
"The party seeking arbitration must show that the parties mutually agreed to arbitrate their disputes. The trial court's 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." Id. at 188, 599 S.E.2d at 59 (quotations and citations omitted).
There was competent evidence, in the form of plaintiff's affidavit, to support the trial court's findings. Because the trial court concluded that the underlying contract was void, there was no enforceable agreement to arbitrate. The trial court's denial of defendants' motion to compel arbitration was therefore appropriate, and we affirm the trial court's order.
Affirmed.
Judges McGEE and TYSON concur.
Report per Rule 30(e).