An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-944


Filed: 5 April 2005


v .                         Mecklenburg County
                            No. 03 CVS 13863

    Appeal by plaintiff from order entered 1 April 2004 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 2 March 2005.

    Hedrick Murray & Cheek PLLC, by Lewis A. Cheek and John C. Rogers, III, for plaintiff-appellant.

    Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr. and Jaye E. Bingham, for Richardson Sports Limited Partnership d/b/a Carolina Panthers and PFF, Inc., defendants-appellees.

    Robinson, Bradshaw & Hinson, P.A., by Mark W. Merritt, for Richardson Sports Limited Partnership d/b/a Carolina Panthers, defendant-appellee.

    JACKSON, Judge.

    On 12 August 2003, Patrick Jeffers (“plaintiff”), a former professional football player with the Carolina Panthers, filed suit against the Carolina Panthers for negligent retention and intentional engagement in misconduct substantially certain to injure plaintiff and against Donald F. D'Alessandro, M.D. (“Dr. D'Alessandro”) and the Miller Orthopedic Clinic, Inc. (the “Miller Clinic”) for malpractice.    In 2000, plaintiff injured his right knee during a preseason game requiring him to undergo surgery on 20 August 2000. Plaintiff agreed to allow Dr. D'Alessandro to repair his right anterior cruciate ligament and to perform arthroscopic surgery on his left knee. The surgery was performed at Carolina's Medical Center in Charlotte, North Carolina. Without plaintiff's knowledge or consent, Dr. D'Alessandro, along with his colleague, Dr. Patrick M. Connor (“Dr. Connor”), performed five additional surgeries on plaintiff's knees during the 20 August 2000 surgery. Dr. Connor, employed by both the Miller Clinic and the Carolina Panthers, performed the surgery to repair plaintiff's anterior cruciate ligament in his right knee. Dr. D'Alessandro performed several surgeries on plaintiff's left and right knees. Plaintiff alleges in his complaint that at no point did Dr. D'Alessandro inform him that he would be performing these additional surgeries, explain the risks of these additional surgeries, or obtain consent from plaintiff's family members during the surgery, several of whom were located in the waiting room.
    Over the next year, plaintiff completely rehabilitated his right knee but continued to have weakness in his left knee, loss of speed and strength, and recurring pain and swelling in both knees. Plaintiff played in some games during the 2001 season. Subsequently, the Carolina Panthers terminated plaintiff's contract in August 2002.
    At the beginning of plaintiff's employment with the Carolina Panthers, plaintiff had signed a standard form negotiated betweenthe National Football League (“NFL”) Management Council, who represents all NFL teams, and the NFL Players Association, the union that represents all NFL players. The contract required any “dispute between player and club involving the interpretation or application of any provision of this contract to be submitted to final and binding arbitration in accordance with the procedure called for in any collective bargaining agreement in existence at the time the event giving rise to any such dispute occurs.”     The NFL Collective Bargaining Agreement (the “Agreement”) between the NFL Management Council and the NFL Players Association governs grievance procedures and medical rights, inter alia. The Agreement required the Carolina Panthers to provide a board- certified orthopedic surgeon as one of its physicians, provided that a player had the right to obtain a second medical opinion, and also that a player could select a surgeon should he need surgery during his employment with the Carolina Panthers.
    On 22 October 2003, Dr. D'Alessandro and the Miller Clinic served an Answer on plaintiff. On 23 October 2003, the Carolina Panthers moved to dismiss based on a lack of subject matter jurisdiction over the claims presented against the Carolina Panthers alleging that the claims were preempted by Section 301 of the Labor Management Relations Act because their resolution depended on an interpretation of the Collective Bargaining Agreement and plaintiff's Player Contract. In the alternative, the Carolina Panthers requested that the trial court compel arbitrationof plaintiff's claims and stay the matter pending the outcome of plaintiff's claims.
    On 1 April 2004, the trial court found that federal labor law preempted plaintiff's state law tort claims and issued an order (“Order”) granting the Carolina Panthers' motion to compel arbitration and stay the state court action as to the Carolina Panthers, pending arbitration.
    On 30 April 2004, the trial court certified an Order compelling arbitration for immediate appeal; plaintiff filed and served his notice of appeal thereafter. The Order stayed the causes of action against the Panthers but did not dismiss them entirely. The claims against Dr. D'Alessandro and the Miller Clinic were not affected by the Order compelling arbitration.
    Before reaching the merits of this case, we must first determine whether this case is properly before this Court. It is well-established that an immediate appeal from an interlocutory order is improper. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). 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 . . . .” Hinson v. Hinson, 17 N.C. App. 505, 508, 195 S.E.2d 98, 100 (1973). This Court previously has held that “an order compelling the parties to arbitrate is an interlocutory order.” The Bluffs v. Wysocki, 68 N.C. App. 284, 286, 314 S.E.2d 291, 293 (1984).    In the instant case, the Order was issued during the pendency of plaintiff's action, it did not dispose of the case, and it required further action by the trial court in order to settle the entire controversy. Id. at 285-86, 314 S.E.2d at 293. Further, the Order issued by the trial court compelled plaintiff and the Carolina Panthers to arbitrate their dispute. As such, this Order is interlocutory in nature and not proper for immediate review by this Court, absent the existence of one of two very narrow exceptions to this general rule. We address each below.
    First, an interlocutory order may be immediately appealable when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and the trial court certifies there is no just reason for delaying an appeal. N.C.G.S. § 1A-1, Rule 54(b)(2003). Specifically, N.C.G.S. § 1A-1, Rule 54(b) provides:
        When more than one claim for relief is presented in an action . . . the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise . . . .
    Here, the trial court certified its Order for immediate appeal to this Court pursuant to Rule 54(b) on 30 April 2004; however, inso doing the trial court exceeded the scope of its authority. The trial court, when certifying its Order, had not rendered a final judgment as to any claim, as required by Rule 54(b). Therefore, the certification was improper, Rule 54(b) does not apply, and Plaintiff cannot fall within this exception.
    Next, plaintiff alleges that his appeal falls within the second exception to the general rule that interlocutory orders are not immediately appealable. To fall within this exception, plaintiff must show the interlocutory order would deprive him of a substantial right. N.C.G.S. § 1-277 and N.C.G.S. § 7A-27(d) provide that an interlocutory order may be appealed when it: (1) affects a substantial right; (2) in effect determines the action and prevents a judgment from which an appeal might be taken; (3) discontinues the action; or (4) grants or refuses a new trial. See also Dalton Moran Shook Inc. v. Pitt Development Co., 113 N.C. App. 707, 710, 440 S.E.2d 585, 588 (1994).
    “Whether or not a substantial right will be prejudiced by delaying an interlocutory appeal must be decided on a case by case basis.” Hoots v. Pryor, 106 N.C. App. 397, 401, 417 S.E.2d 269, 272 (1992), disc. rev. denied, 332 N.C. 345, 421 S.E.2d 148 (1992). In the instant case, plaintiff contends that a substantial right is affected because he would not have immediate access to this Court. Plaintiff further asserts that a substantial right is affected because of the possibility that there could be inconsistent jury verdicts in the event that two trials are held pursuant to the complaints he has filed.     In determining whether plaintiff can appeal the trial court's Order under the substantial right exception, we must answer two questions: (1) Is there a substantial right, and (2) Will the substantial right be lost or adversely affected if the order is not reviewed before the trial court renders final judgment. Country Club of Johnston County, Inc. v. U.S. Fidelity & Guar. Co., 135 N.C. App. 159, 162, 519 S.E.2d 540, 543 (1999), disc. rev. denied, 351 N.C. 352, 542 S.E.2d 207 (2000).
    This Court has stated clearly in previous cases that “there is no immediate right of appeal from an order compelling arbitration.” Wysocki, 68 N.C. App. at 286, 314 S.E.2d at 293; see also Laws v. Horizon Housing, Inc., 137 N.C. App. 770, 771, 529 S.E.2d 695, 696 (2000); Red Springs Presbyterian Church v. Terminix Co., 119 N.C. App. 299, 301, 458 S.E.2d 270, 272 (1995)(“an order compelling arbitration does not affect a substantial right; consequently, it is not immediately appealable”).
    In Darroch v. Lea, we further held that an appellant does not have a right to an immediate appeal from an order compelling binding arbitration. 150 N.C. App. 156, 161-62, 563 S.E.2d 219, 223 (2002). In Darroch, the appellant argued that binding arbitration would deprive him of a substantial right before the trial court resolved another underlying issue. Id. at 161, 563 S.E.2d at 223. In dismissing appellant's appeal as interlocutory, however, this Court found that appellant's substantial rights were not affected because once the court enters judgment consistent withthe arbitrator's decision, the appellant may then appeal the trial court's order or judgment. Id. at 162, 563 S.E.2d at 223.
    In the instant case, plaintiff must be bound by the agreement he signed with the Carolina Panthers which required all disputes be sent to arbitration. The NFL Player Contract signed by both plaintiff and the Carolina Panthers stated “[d]uring the term of any collective bargaining agreement, any dispute between Player and Club involving the interpretation or application of any provision of this contract will be submitted to final and binding arbitration . . . .” The NFL Player Contract further stated that by plaintiff signing the contract, he acknowledged “he was given the opportunity to seek advice from or be represented by persons of his own selection.” Consistent with this NFL Player Contract, Article IX, Section 8 of the NFL Collective Bargaining Agreement provides, in pertinent part:
        The decision of the arbitrator will constitute full, final and complete disposition of the grievance, and will be binding upon the player(s) and Club(s) involved and the parties to this Agreement; provided, however, that the arbitrator will not have the jurisdiction or authority: (a) to add to, subtract from, or alter in any way the provisions of this Agreement or any other applicable document; or (b) to grant any remedy other than a money award, an order of reinstatement, suspension without pay, a stay of suspension pending decision, a cease and desist order, a credit or benefit award under the Bert Bell/Pete Rozelle NFL Player Retirement Plan, or an order of compliance, with a specific term of this Agreement or any other applicable document, or an advisory opinion pursuant to Article XIII (Committees), Section 1(c). In the event the arbitrator finds liability on the part of the Club, he shall award interest beginning one year from the date of the lastregular season game of the season of the grievance . . . .”

    There is no evidence in the record that plaintiff did not understand the agreement he signed with the Carolina Panthers nor was there any evidence in the record showing this agreement was unconscionable. We must therefore hold that plaintiff's lack of immediate access to this Court is not a substantial right which would be lost or affected adversely if we do not render judgment on the merits of this case before final judgment is rendered.
    As to plaintiff's second contention, that there may be a possibility of inconsistent verdicts in the causes of action he has filed, our Supreme Court previously has held that when an appellant could face two possible trials concerning issues based on the same facts, it may trigger a substantial right allowing for an immediate appeal. Hoots, at 401-02, 417 S.E.2d at 272-73. When the possibility for inconsistent verdicts exists, a substantial right is affected only when the “same issues are present in both trials” and it therefore creates a likelihood that one “party will be prejudiced by different juries in separate trials . . . .” Turner at 142, 526 S.E.2d at 670.
    Here, plaintiff has two separate and distinct claims against the parties. Plaintiff is suing the Carolina Panthers for negligent retention and intentional engagement in misconduct substantially certain to injure plaintiff. Plaintiff's suit against the Carolina Panthers concerns the Carolina Panther's retention of Dr. D'Alessandro after the Carolina Panthers allegedly became aware of Dr. D'Alessandro's misconduct. In contrast,plaintiff's suit against Dr. D'Alessandro and the Miller Clinic is for malpractice by the Doctor when operating on plaintiff's knees. Although we believe there will be similar factual issues presented in support of both claims, the legal bases for the claims against the parties are distinctly separate. The arbitration proceedings compelled in the trial court's Order will not affect the outcome of plaintiff's suit against Dr. D'Alessandro or the Miller Clinic.
    It is the opinion of this Court that the trial court's Order compelling arbitration is interlocutory and not immediately appealable, and that plaintiff's substantial rights will not be impaired absent appellate review and before a final judgment is entered. Plaintiff therefore has no right to immediate appeal of the trial court's Order compelling arbitration. Consistent with this opinion, we decline to address the merits of plaintiff's other assignments of error.
    Judges HUNTER and CALABRIA concur.
    Report per Rule 30(e).

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