We first consider plaintiff's challenge to those portions of
defendant's appeal which implicate the issues of plaintiff's
standing and the effect of the third-party warranty. Plaintiff
contends defendant's arguments addressing these matters are
interlocutory and not properly before this Court. As detailed
below, we conclude plaintiff is correct.
[1] With respect to the standing issue, we take note
parenthetically at the outset of defendant's stipulations in the
settled record on appeal that “[a]ll parties were properly before
the trial court” and “[t]he trial court had subject matter and
personal jurisdiction over the parties.” In light of these
stipulations, defendant's arguments asserting plaintiff lacked
standing to bring suit appear curious at best.
See Creek Pointe
Homeowner's Ass'n v. Happ, 146 N.C. App. 159, 164, 552 S.E.2d 220,
225 (2001) (“Standing is a necessary prerequisite to the court's
proper exercise of subject matter jurisdiction.”) (citations
omitted),
disc. review denied, 356 N.C. 161, 568 S.E.2d 191 (2002).
In addition, it is also unclear from the record whether the
Order was directed at
both motions filed by defendant. For
example, the Order recites denial of defendant's “Motion to Dismiss
and Motion to Stay and Compel Arbitration,” thereby only slightly
paraphrasing the title of defendant's
second motion, which did not
expressly raise the issue of standing. Next, defendant reinforcessuch an interpretation by the terminology of its sole assignment of
error, reading “[t]he trial judge committed reversible error by
denying Defendant's Motion [
sic] Dismiss or Stay and Compel
Arbitration,” again in the main incorporating the title of
defendant's second
motion. Finally, plaintiff, without
specification, interjects that “at least one of [defendant's]
arguments [on appeal] was not even considered by the trial court.”
Nonetheless, as “[p]arties cannot stipulate to give a court
subject matter jurisdiction when such jurisdiction does not
exist[,]”
Alford v. Shaw, 327 N.C. 526, 533 n.1, 398 S.E.2d 445,
448 n.1 (1990) (citation omitted), and the issue of standing may be
raised on direct appeal,
Aubin v. Susi, 149 N.C. App. 320, 324, 560
S.E.2d 875, 878-79,
disc. review denied, 356 N.C. 610, 574 S.E.2d
474 (2002), we address whether defendant's appeal of the trial
court's ruling on this issue is interlocutory.
“A motion to dismiss a party's claim for lack of standing is
tantamount to a motion to dismiss for failure to state a claim upon
which relief can be granted according to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure.”
Slaughter v. Swicegood, 162
N.C. App. 457, 464, 591 S.E.2d 577, 582 (2004) (citation omitted);
see also Energy Investors Fund, L.P. v. Metric Constructors, Inc.,
351 N.C. 331, 525 S.E.2d 441 (2000). As our Supreme Court has
stated,
[o]rdinarily, a denial of a motion to dismiss
under Rule 12(b)(6) merely serves to continue
the action then pending. No final judgment is
involved, and the disappointed movant is
generally not deprived of any substantial
right which cannot be protected by timelyappeal from the trial court's ultimate
disposition of the entire controversy on its
merits. Thus, an adverse ruling on a Rule
12(b)(6) motion is in most cases an
interlocutory order from which no direct
appeal may be taken.
State v. School, 299 N.C. 351, 355, 261 S.E.2d 908, 911 (1980)
(citations omitted);
see also Anderson v. Atlantic Casualty Ins.
Co., 134 N.C. App. 724, 725, 518 S.E.2d 786, 787-88 (1999)
(interlocutory order not immediately appealable unless appellant
deprived of a substantial right or appeal properly certified
pursuant to N.C. Gen. Stat. § 1A-1, Rule 54)). Moreover, upon
appeal of an interlocutory order, it is not the responsibility of
this Court to “construct arguments for or find support for [the]
appellant's right to appeal . . . .”
Jeffreys v. Raleigh Oaks
Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
Rather, it is the burden of the appellant to “present appropriate
grounds for th[e] acceptance of [its] interlocutory appeal . . . .”
Id. at 379, 444 S.E.2d at 253.
In the case
sub judice, the trial court did not certify the
Order as immediately appealable pursuant to N.C.G.S. § 1A-1, Rule
54. Although conceding in its appellate brief that appeal of the
Order is interlocutory, defendant maintains the trial court's
ruling “affects a substantial right of the defendant that may be
lost if appeal is delayed.” However, defendant continues merely by
averring that “in similar cases such as
Creek Pointe, this Court
has permitted the issue [of standing] to be considered before the
final disposition of the case.” Defendant misses the mark.
While conceding standing of a homeowners' association to bringsuit was an issue considered in
Creek Pointe, we note the panel
therein properly applied the rule that “determination of whether a
substantial right is affected is made on a case by case basis.”
146 N.C. App. at 162, 552 S.E.2d at 223. Unlike the circumstance
herein, the claims of the homeowners' association
in
Creek Pointe
were actually
dismissed by the trial court pursuant to N.C. Gen.
Stat. § 1A-1, Rule 12(b)(6), a context directly opposite to that
considered in
School,
supra. Further, although interlocutory
because other parties remained in the case, the
Creek Pointe appeal
was allowed to proceed under the substantial right exception
because this Court concluded there existed a possibility of
multiple trials against different members of the same group, thus
raising the possibility of inconsistent verdicts.
146 N.C. App. at
162-63, 552 S.E.2d at 223-24 (citing
Jenkins v. Wheeler, 69 N.C.
App. 140, 316 S.E.2d 354,
disc. review denied, 311 N.C. 758, 321
S.E.2d 136 (1984);
Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405
(1982)).
In the case
sub judice, however, all parties remain, a
nd
defendant does not appear to be deprived by the Order “of any
substantial right which cannot be protected by timely appeal from
the trial court's ultimate disposition of the entire controversy on
its merits.”
School, 299 N.C. at 355, 261 S.E.2d at 911;
see also
Miller v. Swann Plantation Development Co., 101 N.C. App. 394, 395,
399 S.E.2d 137, 139 (1991) (the “'right itself must be substantial
and the deprivation of that substantial right must potentially work
injury to [the appellant] if not corrected before appeal from finaljudgment'”) (citation omitted). In short, we dismiss as
interlocutory defendant's attempt to raise the contention that
plaintiff lacks standing to bring suit.
We also decline to invoke our discretionary power under N.C.R.
App. P. 2 (2005) to address this issue, bearing in mind that “this
power is to be invoked . . . only on 'rare occasions' for such
purposes as to prevent manifest injustice or to expedite a decision
affecting the public interest.”
Reep v. Beck, 360 N.C. 34, 38, 619
S.E.2d 497, 500 (2005) (citations omitted). Neither circumstance
is present in the instant case.
[2] Similarly, we reject as premature defendant's additional
reliance upon plaintiff's alleged acceptance of a third-party
warranty as a bar to suit. With respect to this contention,
defendant acknowledges “[a] motion to dismiss is ordinarily
interlocutory[.]” Notwithstanding, citing
Consumers Power v. Power
Co., 285 N.C. 434, 206 S.E.2d 178 (1974), defendant insists “the
[warranty] issue is so intertwined with the motion to arbitrate,”
this Court should exercise its “supervisory jurisdiction” to hear
defendant's appeal on this issue. As with the issue of standing,
we elect not to do so.
In
Consumers Power, the trial court denied respondent's motion
to dismiss petitioner's declaratory judgment action on grounds of
lack of justiciability. Following a dissent regarding respondent's
appeal to this Court, our Supreme Court declined to dismiss the
appeal as interlocutory. Instead, the Court considered the case in
view of 1) its “belie[f] that decision of the principal questionpresented would expedite the administration of justice,” and 2)
this Court's prior decision addressing the issue of justiciability,
which represented a “deci[sion] . . . upon its merits.”
Id. at
439, 206 S.E.2d at 182.
Again, neither situation described by the Supreme Court is
present herein
. The Order addressed neither the justiciability of
the warranty issue between the parties nor the merits of their
respective claims thereon.
See id. Moreover, although we review
the Order to the extent it involves a decision concerning the
applicability of arbitration,
see infra, we remain unpersuaded that
immediate examination of defendant's warranty claims on the merits
would “expedite the administration of justice.”
See Consumers
Power, 285 N.C. at 439, 206 S.E.2d at 182;
see also Reep, 360 N.C.
at 38, 619 S.E.2d at 500. Accordingly, we dismiss as interlocutory
defendant's argument that a third-party warranty bars plaintiff's
suit.
[3] We now turn to the issue of arbitration. Defendant
maintains certain provisions in the Declaration require the parties
to submit to binding arbitration. Therefore, concludes defendant,
the Order was erroneous in refusing to stay the proceedings and
require arbitration. We are compelled, however, to reverse and
remand the Order because it fails to meet the requirements for
appellate review.
It is well established that because “[t]he right to arbitrate
a claim is a substantial right which may be lost if review is
delayed, . . . an order denying arbitration is . . . immediatelyappealable.”
Howard v. Oakwood Homes Corp., 134 N.C. App. 116,
118, 516 S.E.2d 879, 881,
disc. review denied, 350 N.C. 832, 539
S.E.2d 288 (1999),
cert. denied, 528 U.S. 1155, 145 L. Ed. 2d 1072
(2000). The question of whether a dispute is subject to
arbitration is a question of law for the trial court, and its
conclusion is reviewable
de novo.
Raspet v. Buck, 147 N.C. App.
133, 136, 554 S.E.2d 676, 678 (2001). The determination involves
a two-pronged analysis in which the court “must ascertain both (1)
whether the parties had a valid agreement to arbitrate, and also
(2) whether 'the specific dispute between the parties falls within
the substantive scope of that agreement.'”
Id. (citation omitted).
This Court has recently reversed and remanded an order denying
arbitration which expressly failed to “indicate whether [the trial
court] determined if the parties were bound by [the] arbitration
agreement.”
Ellis-Don Constr., Inc. v. HNTB Corp., 169 N.C. App.
630, 635, 610 S.E.2d 293, 296 (2005). T
he trial court's order
therein stated
in toto:
This Matter came before the Court on
Defendant's Motion to Dismiss and on
Defendant's Motion to Stay and Compel
Arbitration. After reviewing all matters
submitted and hearing arguments of counsel,
the Court is of the opinion that both motions
should be denied. It is therefore, ordered,
adjudged and decreed that Defendant's Motion
to Dismiss is denied and that Defendant's
Motion to Stay and Compel Arbitration is
Denied.
Id. at 634, 610 S.E.2d at 296.
In directing reversal and remand, this Court observed the
order “contained neither factual findings that allow us to reviewthe trial court's ruling, nor a determination whether an
arbitration agreement exists between the parties.”
Id. at 635, 610
S.E.2d at 297. Accordingly, we were “unable to determine the basis
of the trial court's judgement.”
Id. at 635, 610 S.E.2d at 296;
see also Barnhouse v. American Express Fin. Advisors, Inc., 151
N.C. App. 507, 509, 566 S.E.2d 130, 132 (2002) (“The order denying
defendants' motion to stay proceedings does not state upon what
basis the court made its decision, and as such, this Court cannot
properly review whether or not the court correctly denied
defendants' motion. Although it is possible to infer from the
order denying defendants' motion that the trial court found that no
arbitration agreement existed, other possibilities are equally
likely.”) (citation omitted).
T
he Order herein provides as follows:
The Court having considered the Defendants'
Motions, briefs, and arguments of counsel for
the Plaintiff . . . and for the
Defendant, . . .; and it appearing to the
Court that Defendants' Motions should be
Denied;
It is THEREFORE, ORDERED, ADJUDGED and DECREED
that Defendant's Motion to Dismiss and Motion
to Stay and Compel Arbitration are DENIED.
We are unable to distinguish the foregoing from the order deemed
insufficient in
Ellis-Don. Therefore, because that decision as
well as
Barnhouse are binding upon us,
see In the Matter of Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
(“Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is
bound by that precedent, unless it has been overturned by a highercourt.”), we reverse and remand the Order.
On remand, the trial court may hear evidence and further
argument to the extent it determines in its discretion that either
or both may be necessary and appropriate. Thereafter, the court is
to enter a new order containing findings which sustain its
determination regarding the validity and applicability of the
arbitration provisions.
See Barnhouse, 151 N.C. at 509 n.1, 566
S.E.2d at 132 n.1 (“[O]ur holding does not require the trial court
to make detailed and specific findings of fact regarding the
agreement to arbitrate. Rather, the trial court's order must
simply reflect whether or not a valid agreement to arbitrate exists
between the parties.”);
see also Ellis-Don, 169 N.C. App. at 635,
610 S.E.2d at 297 (“The trial court's denial of defendant's motion
to stay and compel arbitration is reversed and the matter is
remanded for further factual findings and conclusions of law in
accordance with this opinion.”).
Dismissed in part; Reversed and Remanded in part.
Judges WYNN and STEELMAN concur.
*** Converted from WordPerfect ***