An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 18 April 2006
No. 05 CVS 3707
ROBERT N. PULLIAM;
ROBERT N. PULLIAM CPA/ABV,
PLLC; and CENTERMARK, LLC,
Appeal by defendants from judgment entered 27 July 2005 by
Judge A. Moses Massey in Forsyth County Superior Court. Heard in
the Court of Appeals 30 March 2006.
Robinson & Lawing, LLP, by Adam R. Smart, Norwood Robinson,
and Michael L. Robinson, for plaintiff-appellee.
Wilson & Iseman, LLP, by G. Gray Wilson and Maria C.
Papoulias, and Sharpless & Stavola, PA, by Frederick K.
Sharpless, for defendants-appellants.
In April 2000, plaintiff was involved in an equitable
distribution dispute with her estranged husband. Plaintiff
retained the services of defendant, Robert N. Pulliam, a Certified
Public Accountant (CPA) and business evaluator to assist her. On
19 April 2000, Pulliam submitted a letter to plaintiff, which he
had drafted and represented as a standard fee agreement. Plaintiff
and defendant, Robert N. Pulliam, CPA/ABV, on behalf of Pulliam
Financial Group, PLLC, signed the agreement. The agreement
contained an arbitration provision whereby the parties agreed tosubmit any dispute which arose from the contract to binding
A dispute arose regarding plaintiff's payment for services
provided by Pulliam. On 13 October 2004, defendant, CenterMark,
LLC, filed a demand for arbitration with the American Arbitration
Association (AAA) seeking payment in the amount of $56,814.05 and
asserting their right to arbitrate the claim under the terms of the
19 April 2000 agreement. At some time subsequent to 19 April 2000,
Pulliam and CenterMark contemplated a merger, which was never
consummated. The arbitration proceeding was stayed while the
parties attempted to resolve the dispute through mediation. When
the mediation was unsuccessful, the AAA lifted the stay and the
parties continued with the arbitration proceeding. Plaintiff
participated in the arbitration proceeding before filing her action
in superior court.
On 9 June 2005, plaintiff instituted this action in Forsyth
County Superior Court alleging breach of contract, fraud,
constructive fraud, negligent misrepresentation, and unfair or
deceptive trade practices. On 24 June 2005, plaintiff filed a
motion to dismiss or stay arbitration. On 8 July 2005, defendants
filed a motion to compel arbitration. The trial court granted
plaintiff's motion to dismiss and denied defendants' motion to
compel arbitration. Defendants appeal.
Before we can address defendants' arguments on appeal, we must
address the matter of standing. First, we must determine who were
the parties to the 19 April 2000 agreement so that we can determinewhether the party who brought the arbitration proceeding,
CenterMark, had standing to do so.
Generally, one who is not a party to an
arbitration agreement lacks standing to compel
arbitration. Non-signatories to an arbitration
agreement may be bound by or enforce an
arbitration agreement executed by other
parties under theories arising out of common
law principles of contract and agency law.
Under the theory of agency, an agent can
assume the protection of the contract which
the principal has signed. Courts have applied
this principle to allow for non-signatory
agents to avail themselves of the protection
of their principal's arbitration agreement.
Brown v. Centex Homes
, ___ N.C. App. ___, ___, 615 S.E.2d 86, 88
(2005). The parties who signed the agreement were Ms. Adams and
Mr. Pulliam in his representative capacity as owner and managing
partner of Pulliam, PLLC. CenterMark, the party who filed the
demand for arbitration with the AAA, did not sign the agreement,
was not a party to the agreement, nor did it succeed to any of the
rights of either of the parties who did sign the agreement.
Defendants contend CenterMark is the same entity as Robert N.
Pulliam CPA/ABV, PLLC (Pulliam PLLC)
(See footnote 1)
. However, Mr. Pulliam's
affidavit indicates a contemplated merger between Pulliam Financial
Group and CenterMark was never finalized. Thus, CenterMark did not
succeed to any rights of Pulliam, PLLC, nor did it have standing to
compel arbitration of a dispute under the 19 April 2000 agreement.
On 19 July 2005, the day before plaintiff's motion to stay ordismiss the arbitration was scheduled to be heard, CenterMark
attempted to amend the demand for arbitration to add Robert N.
Pulliam and Robert N. Pulliam CPA/ABV, PLLC as claimants. However,
there is nothing in the record to indicate whether the AAA granted
the motion to amend. As appellants, defendants have the burden of
ensuring that all necessary information was included in the record
on appeal as required by Rule 9 of the Rules of Appellate
Procedure. Tucker v. City of Kannapolis
, 159 N.C. App. 174, 176,
582 S.E.2d 697, 698 (2003). Since it appears from the record on
appeal that defendant CenterMark lacked standing to compel
arbitration, we must hold the trial court did not err in granting
plaintiff's motion to dismiss the arbitration and denying
defendants' motion to compel arbitration.
Judges MCCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
Pulliam, PLLC was originally named Pulliam Financial
Group, however, it's Articles of Organization were amended to
rename the company Robert N. Pulliam CPA/ABV, PLLC.
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