An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-749


Filed: 6 May 2003


v .                                     Durham County
                                        No. 01CVD003983

    Appeal by defendant from an order entered 11 February 2002 by Judge Elaine M. O'Neal in Durham County District Court. Heard in the Court of Appeals 18 February 2003.

    Michael E. Bienvenu for plaintiff-appellees.

    William W. Browning for defendant-appellant.

    HUNTER, Judge.

    Nwamaka Uchebo (“defendant”) appeals an order entering into judgment an arbitration award that concluded Gladys and Lisa Jenkins (collectively “plaintiffs”) owned a permanent easement of way appurtenant to and over a portion of defendant's property. Defendant also appeals the sanctions imposed on him for failure to attend a court-ordered arbitration hearing, as well as the court's denial of his motion for summary judgment. We affirm for the reasons stated herein.
    The parties to this action are owners of adjoining tracts of land in Durham, North Carolina; the northern boundary of plaintiffs' tract coincides with the southern boundary ofdefendant's tract. Both tracts front on a public roadway known as Robinwood Road. Plaintiffs acquired and recorded a deed to their tract (4914 Robinwood Road) on 9 April 1986. Defendant acquired and recorded a deed to his tract (4912 Robinwood Road) on 28 December 1988. At the time of defendant's purchase, a gravel driveway existed that encroached on the southern boundary of his property that plaintiffs used to access Robinwood Road from their garage, which faced in a northerly direction. Plaintiffs continued to use the driveway until May of 1995, at which time defendant erected a chain link fence on the boundary line between the parties' properties that prevented plaintiffs from fully accessing the driveway.
    On 27 August 2001, plaintiffs filed a complaint alleging they possessed a permanent easement over that portion of defendant's property on which the driveway was located for purposes of ingress and egress to and from Robinwood Road. They sought (1) to enjoin defendant from obstructing or interfering with the alleged easement; (2) costs associated with bringing the action; and (3) any other relief the court deemed just. Defendant timely filed an answer, and a court-ordered arbitration was subsequently scheduled for 6 December 2001.
    Plaintiffs and their attorney attended the 6 December 2001 arbitration proceeding, but neither defendant nor his counsel were present. Nevertheless, the arbitrator heard plaintiffs' evidence and entered a judgment in their favor on 7 December 2001 that (1) concluded plaintiffs had a permanent easement of way appurtenant toand across defendant's property by way of a permanent driveway for purposes of ingress and egress; and (2) ordered defendant to pay plaintiffs $20,000.00 in damages for maliciously interfering with plaintiffs' rights by constructing a fence that prevented full use of the driveway. Defendant was also ordered to pay all costs associated with the action.
    In response to the arbitrator's judgment, defendant filed a Request for Trial De Novo on 31 December 2001. On 10 January 2002, plaintiffs filed a Motion to Impose Sanctions, Strike or Dismiss Defendant's Motion for Trial De Novo and to Enter Arbitration Award into Judgment. Plaintiffs' motion was based largely on defendant's alleged violations of the North Carolina Court-Ordered Arbitration Rules (“Arbitration Rules”). Defendant then filed a Motion for Summary Judgment on 25 January 2002.
    Each party's motion was heard on 11 February 2002. Following the presentation of arguments, the trial court found that defendant had violated the Arbitration Rules by “failing to appear and participate in good faith in the court-ordered arbitration[.]” Thus, in an order entered 15 February 2002, the court granted plaintiffs' motion and:
        1.    impose[d] sanctions upon Defendant for failure to appear at the court ordered arbitration on December 6, 2001; and

        2.    [struck] Defendant's motion for trial de novo; and

        3.    enter[ed] into judgment the arbitrator's award in favor of Plaintiffs filed with the court on December 7, 2001 . . . ; and
        4.    award[ed] to Plaintiffs reasonable attorney's fees in the amount of $1,488.00 associated with the arbitration and [Plaintiffs'] motion.

Based on its decision regarding plaintiffs' motion, the court declined to hear defendant's Motion for Summary Judgment. Defendant appeals the court's order and its refusal to hear his motion.


    Three of defendant's five assignments of error present arguments supporting his contention that the trial court erred in granting plaintiffs' Motion to Impose Sanctions, Strike or Dismiss Defendant's Motion for Trial De Novo and to Enter Arbitration Award into Judgment.
A. Insufficiency of Evidence

    Defendant argues the trial court's grant of plaintiffs' motion was in error because there was insufficient evidence to support awarding plaintiffs a permanent easement over defendant's property and $20,000.00 in monetary damages. We disagree.
    Generally, “[a]ll civil actions filed in the trial divisions of the General Court of Justice which are not assigned to a magistrate . . . are subject to court-ordered arbitration . . . .” R. Ct.-Ordered Arbitration in N.C. 1(a), 2003 N.C. R. Ct. 258. At an arbitration hearing, an arbitrator has “the authority of a trial judge to govern the conduct of hearings[.]” R. Ct.-Ordered Arbitration in N.C. 3(g), 2003 N.C. R. Ct. 260. In doing so, “[t]he arbitrator shall consider all evidence presented and give it the weight and effect the arbitrator determines appropriate.” R. Ct.-Ordered Arbitration in N.C. 3(h), 2003 N.C. R. Ct. 260. Thearbitrator shall then issue an award based on this evidence, and “[n]o findings of fact and conclusions of law or opinions supporting [that] award are required.” R. Ct.-Ordered Arbitration in N.C. 4(b), 2003 N.C. R. Ct. 262. Further, “[n]o official transcript of an arbitration hearing shall be made.” R. Ct.- Ordered Arbitration in N.C. 3(k), 2003 N.C. R. Ct. 261. Thus, “[a] judgment entered on the arbitrator's award is not appealable because there is no record for review by an appellate court.” R. Ct.-Ordered Arbitration in N.C. 6 Comment, 2003 N.C. R. Ct. 262.
    In the case sub judice, plaintiffs' claim alleging a permanent easement was properly submitted to court-ordered arbitration. See R. Ct.-Ordered Arbitration in N.C. 1(a), 2003 N.C. R. Ct. 258. During the arbitration hearing, plaintiffs were the only party that presented evidence to the arbitrator. Neither defendant nor his attorney were present at the hearing, which was a violation of the Arbitration Rules. See R. Ct.-Ordered Arbitration in N.C. 3(p), 2003 N.C. R. Ct. 261 (stating “[a]ll parties shall be present at hearings in person or through representatives authorized to make binding decisions on their behalf in all matters in controversy before the arbitrator”). The arbitrator, finding that defendant did not have good cause for failing to appear at the hearing, proceeded with the hearing and made an award against defendant based upon the evidence offered by plaintiff. See R. Ct.-Ordered Arbitration in N.C. 3(j), 2003 N.C. R. Ct. 260-61. Since an arbitration award is not subject to appeal, we may not now questionthe sufficiency and weight given to plaintiffs' evidence by the arbitrator.
B. Insufficiency of Allegations

    Next, defendant argues the trial court erred in granting plaintiffs' motion because plaintiffs' complaint did not contain pleadings and allegations sufficient to result in a monetary award of $20,000.00. Defendant contends the absence of such pleadings and allegations failed to put him on notice that monetary damages were being sought by plaintiffs or were a possible remedy. However, since the award resulted from an arbitration hearing, the arbitrator was entitled to award damages to plaintiffs in an amount exceeding $15,000.00. R. Ct.-Ordered Arbitration in N.C. 1 Comment, 2003 N.C. R. Ct. 258-59 and R. Ct.-Ordered Arbitration in N.C. 4(c), 2003 N.C. R. Ct. 262. Thus, having previously stated that a judgment entered on the arbitrator's award is not appealable, we cannot conclude that plaintiffs were awarded monetary damages in error.
C. Failure to Consider Alternative Sanctions

    Defendant also argues the trial court abused its discretion when it granted plaintiffs' motion without considering the appropriateness of alternative sanctions. We disagree.
            The Rules of Arbitration provide that a court may sanction a party for failing or refusing to participate in arbitration proceedings in good faith. Once the court makes that determination, then the court may choose to use any of the sanctioning methods prescribed in N.C.R. Civ. P. 11, 37(b)(2)(A)- 37(b)(2)(C) or G.S. § 6-21.5.
Andaloro v. Sawyer, 144 N.C. App. 611, 614, 551 S.E.2d 128, 130 (2001) (citations omitted) (emphasis added). Specifically, this Court has previously held that the striking of a defendant's request for a trial de novo pursuant to Rule 37(b)(2)(c) is an appropriate sanctioning method. See Mohamad v. Simmons, 139 N.C. App. 610, 615, 534 S.E.2d 616, 620 (2000). See also R. Ct.-Ordered Arbitration in N.C. 3(b), 2003 N.C. R. Ct. 260.
    In the instant case, it is undisputed that defendant violated the Arbitration Rules when neither he nor his attorney attended the arbitration hearing despite having received sufficient notice of the hearing from the trial court administrator. In his brief, defendant contends that he and his attorney were absent “due to a scheduling error, whereby [his] counsel had inadvertently calendared the case for the following week, which error was discovered after the hearing was held.” However, “even if there were evidence that the reasons for defendant's failure to appear were beyond his control, defendant nonetheless failed to employ the most appropriate remedy for his failure to appear; namely, moving for a rehearing pursuant to Rule 3(j) . . . .” Bledsole v. Johnson, 150 N.C. App. 619, 624, 564 S.E.2d 902, 906, disc. review allowed and cert. allowed, 356 N.C. 297, 570 S.E.2d 498 (2002). See also R. Ct.-Ordered Arbitration in N.C. 3(j), 2003 N.C. R. Ct. 260-61. By granting plaintiffs' motion, we hold the court selected an appropriate method by which to sanction defendant for his failure to participate in mandatory arbitration in a good faith and meaningful manner.    Accordingly, with respect to defendant's arguments regarding the harshness of the trial court's actions in granting plaintiffs' motion, statutory authority and case law give the court the discretion to sanction defendant for failing to comply with the Arbitration Rules. Thus, we cannot hold the trial court abused its discretion in doing so even if this Court might have imposed a lesser sanction.

    Defendant assigns error to the court's failure to hear his motion for summary judgment. Summary judgment, however, is a pretrial mechanism used “to bring litigation to an early decision on the merits without the delay and expense of a trial when no material facts are at issue.” Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985). Here, defendant filed a motion for summary judgment in the event his request for trial de novo was granted. When defendant's request was subsequently denied as a result of the court's granting plaintiffs' motion, this pretrial mechanism was no longer available to defendant because the court's entry of the arbitration award into the judgment resulted in a final adjudication of the case. Having determined that plaintiff's motion was properly granted, we overrule defendant's assignment of error.

    Finally, defendant assigns error to the trial court awarding attorney's fees in favor of plaintiffs. Defendant cites Bledsole in support of this argument.    In Bledsole, we remanded for clarification a trial court's order awarding attorney's fees to the plaintiff because the order was unclear as to whether the award was intended to modify an arbitrator's award based on the defendant's failure to appear at arbitration or as an award under some other statutory authority. Id. Here, defendant contends that the trial court erred in awarding plaintiffs $1,488.00 in attorney's fees because attorney's fees were not awarded in the arbitration award, and the trial court's order did not specifically indicate any other basis upon which the fees were awarded. Therefore, by analogizing the present case to Bledsole, defendant requests that the trial court's order also be remanded to allow for clarification of the award. We conclude such action is unnecessary.
    Despite plaintiffs' contention, the court's order clearly stated that defendant's failure to appear and participate in good faith in the court-ordered arbitration resulted in him being sanctioned “in accordance with Rule 3(l) of the [Arbitration Rules] and Rules 11 and 37(b)(2) of the North Carolina Rules of Civil Procedure and North Carolina General Statutes § 6-21.5.” Of those rules, Rule 37(b)(2) specifically allows a court to order the party that failed to obey an underlying order, i.e., an order requiring participation in a court-ordered arbitration, to pay reasonable attorney's fees. See N.C. Gen. Stat. § 1A-1, Rule 37(b)(2) (2001). The amount of attorney's fees awarded was determined by the court based on an affidavit submitted by plaintiffs' attorney to the trial court. The court concluded that $1,488.00 was a reasonableamount associated with the arbitration of plaintiffs' motion. Thus, the trial court did not err and had a proper basis upon which to award attorney's fees to plaintiffs.
    In conclusion, we affirm the trial court's order and its denial of defendant's Motion for Summary Judgment.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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