Burke v. Wilkins
| Decision Date | 15 December 1998 |
| Docket Number | No. COA98-188,COA98-188 |
| Citation | 131 NC App. 687,507 S.E.2d 913 |
| Court | North Carolina Court of Appeals |
| Parties | Jeffrey L. BURKE; and, Claudia K. Burke, Plaintiffs, v. Steve WILKINS, Individually and in his capacity as an Officer of WebSurf, Inc.; and, WebSurf, Inc. a North Carolina Corporation, Defendants. |
The Banks Law Firm, P.A., by Bryan E. Wardell, Raleigh, for plaintiff-appellee.
Allen and Pinnix, P.A., by Michael L. Weisel and Noel L. Allen, Raleigh, for defendants-appellants.
Defendants appeal from an order of the trial court denying their Motion to Compel Arbitration and Stay Proceedings. After careful review, we reverse the court's order and remand for further proceedings.
In July of 1996, defendants Steve Wilkins and Websurf, Inc. placed an advertisement in the Business Opportunities section of the Raleigh News & Observer soliciting "partners" in a regional joint venture and licensing program to market their Internet access software. Jeffrey L. Burke and Claudia K. Burke (collectively, "plaintiffs") responded to defendants' advertisement and ultimately entered into a Regional Joint Venture Agreement, a Websurf Licensing Agreement, and a Transfer of Area License and Joint Venture Partnership Agreement with defendants. Each of these agreements contained the following provision:
The parties expressly agree that all disputes arising under or related to this agreement shall be submitted and finally settled by arbitration. This arbitration shall be conducted in accordance with the rules of arbitration of the American Arbitration Association then in effect. The arbitration shall be conducted in Raleigh, NC, and judgment upon the arbitration award may be entered in any court having jurisdiction.
On 11 July 1997, plaintiffs instituted an action against defendants in Wake County Superior Court alleging violations of the North Carolina Business Opportunity Sales Act ("BOSA"), fraud, unfair and deceptive trade practices, and breach of contract. On 5 September 1997, defendants filed a Motion to Compel Arbitration and to Stay Proceeding Pending Arbitration. The trial court heard arguments on the motion on 23 October 1997. Defendants argued that under the terms of the parties' agreements, all claims asserted in plaintiffs' complaint must be submitted to arbitration. Plaintiffs, on the other hand, argued that due to defendants' numerous BOSA violations, the agreements between the parties are void and, thus, no valid arbitration agreement exists. After reviewing the arguments of the parties and the record before it, the trial court entered an order on 10 November 1997 denying the motion to compel arbitration with respect to the BOSA, fraud, and unfair and deceptive trade practices claims. From this order, defendants appeal.
On appeal, defendants bring forth but one assignment of error alleging that the trial court improperly denied their motion to stay the proceedings and compel arbitration. Initially, we point out that an "order denying arbitration, although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed." Prime South Homes v. Byrd, 102 N.C.App. 255, 258, 401 S.E.2d 822, 825 (1991).
The record indicates that defendants' motion to compel arbitration was made pursuant to the North Carolina Uniform Arbitration Act, North Carolina General Statutes section 1-567, et seq. Section 1-567.3, in relevant part, states the following:
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...it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed. Burke v. Wilkins, 131 N.C.App. 687, 688, 507 S.E.2d 913, 914 (1998). A dispute can only be settled by arbitration if a valid arbitration agreement exists. The party seeking arbitration ......
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