Mecklenburg County Ap Atlantic, Inc v. Crescent University City Venture, LLC, 072816 NCSUP, 15 CVS 14745

Docket Nº:15 CVS 14745
Opinion Judge:Louis A. Bledsoe, III Special Superior Court Judge.
Party Name:MECKLENBURG COUNTY AP ATLANTIC, INC. d/b/a ADOLFSON & PETERSON CONSTRUCTION, Plaintiff and Third-Party Plaintiff, v. CRESCENT UNIVERSITY CITY VENTURE, LLC AND THE GUARANTEE COMPANY OF NORTH AMERICA USA, BB & M ARCHITECTURE, PLLC, SCA ENGINEERS, INC., MADISON CONSTRUCTION GROUP, INC., TRUSSWAY MANUFACTURING, INC., and T. A. KAISER HEATING & AIR,...
Attorney:Johnston, Allison, & Hord, P.A., by Greg C. Ahlum, Robert L. Burchette, and Parker E. Moore, for Plaintiff AP Atlantic, Inc. d/b/a/ Adolfson & Peterson Construction. Hamilton, Stephens, Steele, & Martin, PLLC, by Bentford E. Martin and Mark R. Kutny, for Third-Party Defendant Sears Contract, Inc.
Case Date:July 28, 2016
Court:Superior Courts of Law and Equity of North Carolina
 
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2016 NCBC 58

MECKLENBURG COUNTY AP ATLANTIC, INC. d/b/a ADOLFSON & PETERSON CONSTRUCTION, Plaintiff and Third-Party Plaintiff,

v.

CRESCENT UNIVERSITY CITY VENTURE, LLC AND THE GUARANTEE COMPANY OF NORTH AMERICA USA, BB & M ARCHITECTURE, PLLC, SCA ENGINEERS, INC., MADISON CONSTRUCTION GROUP, INC., TRUSSWAY MANUFACTURING, INC., and T. A. KAISER HEATING & AIR, INC., Defendants,

v.

COMMERCIAL GLAZING ASSOCIATES, LLC, KMAC OF THE CAROLINAS, INC., SEARS CONTRACT, INC., and SOUTHEND PAINTING CONTRACTORS, INC., Third-Party Defendants.

MADISON CONSTRUCTION GROUP, INC., Third-Party Plaintiff,

v.

MANUEL BUILDING CONTRACTORS, LLC, Third-Party Defendant.

No. 15 CVS 14745

Superior Court of North Carolina

July 28, 2016

Johnston, Allison, & Hord, P.A., by Greg C. Ahlum, Robert L. Burchette, and Parker E. Moore, for Plaintiff AP Atlantic, Inc. d/b/a/ Adolfson & Peterson Construction.

Hamilton, Stephens, Steele, & Martin, PLLC, by Bentford E. Martin and Mark R. Kutny, for Third-Party Defendant Sears Contract, Inc.

ORDER AND OPINION ON THIRD-PARTY DEFENDANT SEARS CONTRACT, INC.'S MOTION TO DISMISS OR STAY AND COMPEL ARBITRATION

Louis A. Bledsoe, III Special Superior Court Judge.

{1} THIS MATTER is before the Court upon Third-Party Defendant Sears

Contract, Inc.'s ("Sears") Motion to Dismiss or Stay Litigation and Compel Arbitration (the "Motion") in the above-captioned case.1

{2} After considering the Motion, the briefs in support of and in opposition to the Motion, and the arguments of counsel at a hearing on July 27, 2016, the Court memorializes its oral ruling at the hearing and hereby DENIES the Motion and DEFERS to the duly-selected arbitrator in the private arbitration currently pending between the parties the determination of the arbitrability of Plaintiff AP Atlantic, Inc. d/b/a Adolfson & Peterson Construction's ("Plaintiff" or "AP Atlantic") claim for breach of contract against Sears for alleged late performance.

I.

BACKGROUND

{3} This case arises out of multi-party litigation regarding a construction project for which Plaintiff AP Atlantic was the general contractor and Sears was a subcontractor tasked with furnishing and installing drywall. AP Atlantic's Third-Party Complaint brings a claim against Sears for breach of contract for Sears's alleged delay in performance (the "Delay Claim") and for alleged damage to trusses caused by Sears. Sears's Motion petitions the Court to (i) dismiss AP Atlantic's Delay Claim under the prior pending action doctrine or, alternatively, (ii) stay AP Atlantic's Delay Claim and compel arbitration of the Delay Claim in an arbitration previously scheduled between AP Atlantic and Sears. Ruling on the merits of the Motion would require the Court to determine whether or not AP Atlantic's Delay Claim is subject to an arbitration agreement entered into between AP Atlantic and Sears in a prior pending action.

{4} The North Carolina appellate courts have made it clear that "an order denying a motion to compel arbitration must include findings of fact as to 'whether the parties had a valid agreement to arbitrate' and, if so, 'whether the specific dispute falls within the substantive scope of that agreement.'" Cornelius v. Lipscomb, 224 N.C.App. 14, 16, 734 S.E.2d 870, 871 (2012) (citations omitted); see also, e.g., Cold Springs Ventures, LLC v. Gilead Scis., Inc., 2015 NCBC LEXIS 1, at *6 ( N.C. Super. Ct. Jan. 6, 2015) (noting that N.C. Gen. Stat. § 1-569.7 and relevant case law require the trial court "to make finding[s of] fact[] in order to determine whether an 'enforceable agreement to arbitrate' exists"). At the same time, our courts have held that "an order compelling arbitration does not affect a substantial right" that will be lost absent an immediate appeal. Haynesworth v. Am. Express Travel Related Servs. Co., No. COA12-472, 2013 N.C.App. LEXIS 315, at *5 ( N.C. Ct. App. Apr. 2, 2013) (unpublished) (citing Bullard v. Tall House Bldg. Co., 196 N.C.App. 627, 635-36, 676 S.E.2d 96, 102 (2009) ("[A]n order granting a motion to compel arbitration . . . is explicitly recognized not to have a right of appeal within our case law.")).

{5} The Court elects to make the following findings of fact and conclusions of law for the limited purpose of resolving the Motion's request to stay litigation and compel arbitration.2 See, e.g., Creekside Constr. Co. v. Dowler, 172 N.C.App. 558, 563, 616 S.E.2d 609, 612 (2005) (affirming order compelling arbitration where trial court made findings of fact and conclusions of law). Although most of the alleged facts do not appear to be in dispute, "in determining the threshold issue of whether a mandatory arbitration agreement exists, the court necessarily must sit as a finder of fact. Accordingly, for such limited purpose, the court also may consider evidence as to facts that are in dispute." Capps v. Blondeau, 2010 NCBC LEXIS 10, at *5 n.6 ( N.C. Super. Ct. Apr. 13, 2010) (citing Slaughter v. Swicegood, 162 N.C.App. 457, 461, 591 S.E.2d 577, 580 (2004)), aff'd, 217 N.C.App. 195, 719 S.E.2d 256 (2011). The Court makes these findings without prejudice to inconsistent findings in any subsequent proceeding. The findings are based on the Amended Third-Party Complaint against Sears, the Motion, and documents of record.3

II. FINDINGS OF FACT

{6} Plaintiff AP Atlantic was the general contractor for the construction of the Circle University City Apartments (the "Project") in Charlotte, North Carolina under a prime construction contract with Crescent University City Venture, LLC ("Crescent" or the "Owner") dated December 14, 2012 (the "Prime Contract").

{7} On December 14, 2012, AP Atlantic also entered into a subcontract agreement with Sears to furnish and install drywall on the Project (the "Subcontract"). The Subcontract contains separate provisions concerning the procedures for the resolution of claims between AP Atlantic and Sears that involve the Owner (Section 12.2) and for resolution of claims between the parties that do not...

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