Appeal by defendant from order entered 1 March 2001 by Judge
Carl L. Tilghman in Jones County Superior Court. Heard in the
Court of Appeals 14 March 2002.
Robert W. Detwiler, for plaintiff-appellees.
Sellers, Hinshaw, Ayers, Dortch and Lyons, P.A., by Timothy G.
Sellers and Robert A. Whitlow, for defendant-appellant.
MARTIN, Judge.
Defendant appeals the trial court's denial of its motion to
compel arbitration. We affirm.
On 24 November 1997, plaintiffs, Harold W. Squires and Barbara
S. Squires, entered into a contract with defendant, Jim Walter
Homes, Inc., for the purchase of a house to be constructed by
defendant. After defendant had finished constructing the house,
plaintiffs filed a complaint against defendant on 17 August 2000,
alleging money damages due to unfair trade practices, fraud, and
breach of warranty. Defendant responded by filing a motion to stay
the action pending arbitration on 20 October 2000. On 1 March
2001, Judge Carl L. Tilghman entered an order denying defendant'smotion, concluding that defendant had failed to show, by the
greater weight of the evidence, the existence of a valid and
enforceable agreement to arbitrate.
The sole issue on appeal is whether the trial court erred in
denying defendant's motion to compel arbitration.
We initially note that the trial court's order is
interlocutory because it fails to resolve all issues between all
parties in the action.
Howard v. Oakwood Homes, Corp., 134 N.C.
App. 116, 516 S.E.2d 879,
disc. review denied, 350 N.C. 832, 539
S.E.2d 288 (1999). However, an order denying arbitration is
subject to immediate appeal “because it involves a substantial
right, the right to arbitrate claims, which might be lost if appeal
is delayed.”
Martin v. Vance, 133 N.C. App. 116, 119, 514 S.E.2d
306, 308 (1999). Therefore, defendant's appeal is properly before
us.
G.S. § 1-567.3 provides, in relevant part:
(a) On application of a party showing an
agreement described in G.S. 1-567.2; and the
opposing party's refusal to arbitrate, the
court shall order the parties to proceed with
arbitration, but if the opposing party denies
the existence of the agreement to arbitrate,
the court shall proceed summarily to the
determination of the issue so raised and shall
order arbitration if found for the moving
party, otherwise, the application shall be
denied.
N.C. Gen. Stat. § 1-567.3(a) (2001).
“Therefore, when the party contesting arbitration challenges
the legitimacy of such an agreement, the trial court must'summarily determine whether, as a matter of law, a valid
arbitration agreement exists.'”
CIT Group/Sales Financing, Inc. v.
Bray, 141 N.C. App. 542, 544, 539 S.E.2d 690, 691-92 (2000)
(quoting
Routh v. Snap On Tools Corp., 101 N.C. App. 703, 706, 400
S.E.2d 755, 757 (1991)). In the case
sub judice, plaintiffs denied
the existence of a valid arbitration agreement. The trial court
properly proceeded to determine whether there existed a valid and
enforceable agreement to arbitrate. Concluding no such agreement
existed, the trial court denied defendant's motion to compel
arbitration.
The trial court made no findings of fact to support its
conclusion that no valid arbitration agreement existed. Under G.S.
§ 1A-1, Rule 52(a)(2), the trial court is not required to make
findings of fact and conclusions of law when ruling upon a motion
unless they are requested by a party or required by Rule 41(b)
which is not applicable here. In the instant case, there is no
indication in the record that either party requested that the trial
court make findings of fact. Therefore, the trial court had no
duty to make such findings. When the court is not required to find
facts and does not do so, it is presumed that the court, upon
proper evidence, found facts to support its ruling.
Patrick v.
Ronald Williams, P.A., 102 N.C. App. 355, 402 S.E.2d 452 (1991).
Therefore, in this case, we must presume that the court, upon
proper evidence, found facts to support its conclusion that there
was no valid arbitration agreement and thus its denial of
defendant's motion to compel arbitration. Accordingly, we affirm. Affirmed.
Judges HUDSON and THOMAS concur.
Report per Rule 30(e).
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