Sciolino v. TD WATERHOUSE INVESTOR SERVICES
Decision Date | 02 April 2002 |
Docket Number | No. COA01-422.,COA01-422. |
Citation | 149 NC App. 642,562 S.E.2d 64 |
Court | North Carolina Court of Appeals |
Parties | Joseph C. SCIOLINO and Constance F. Sciolino, Plaintiffs, v. TD WATERHOUSE INVESTOR SERVICES, INC.; Waterhouse Securities, Inc.; Neil Kirk Porter, and Anthony Tyson Pope, Defendants. |
Ellis & Winters L.L.P., by J. Anthony Penry, Cary, for plaintiff appellees.
Burns, Day & Presnell, P.A., by Daniel C. Higgins, Raleigh, for defendant appellants.
TD Waterhouse Investor Services, Inc., Waterhouse Securities, Inc., Neil Kirk Porter and Anthony Tyson Pope (collectively, "defendants") appeal from an order denying their motion to compel arbitration. For the reasons stated herein, we affirm the order of the trial court.
On 29 June 2000, Joseph C. Sciolino and his wife, Constance F. Sciolino (collectively, "plaintiffs"), filed a complaint against defendants in Wake County Superior Court, alleging breaches of contract and fiduciary duty, negligence, constructive and securities fraud, and conversion. Defendants thereafter filed a motion to compel arbitration of plaintiffs' claims, which motion the trial court heard on 26 October 2000. Upon consideration of all of the evidence and arguments by the parties, the trial court made the following findings of fact:
Based on the above-stated facts, the trial court concluded that an arbitration agreement did not exist and accordingly denied defendants' motion to compel arbitration, from which order defendants appeal.
The sole issue on appeal is whether the trial court erred in denying defendants' motion to compel arbitration. We conclude that the trial court properly denied defendants' motion.
We note initially that the order denying defendants' motion to compel arbitration is interlocutory, as it is not a final judgment. See Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)
. Although we do not generally review interlocutory orders, see id., "an order denying arbitration is immediately appealable because it involves a substantial right, the right to arbitrate claims, which might be lost if appeal is delayed." Martin v. Vance, 133 N.C.App. 116, 119, 514 S.E.2d 306, 308 (1999). Thus, we review the merits of defendants' appeal in the instant case.
Defendants argue that the trial court erred in denying their motion to compel arbitration. Noting the public policy which favors arbitration, defendants contend that, by signing the webBroker Account Application ("the application"), plaintiffs agreed to submit any dispute arising from their account to arbitration. The application at issue contains the following statements:
Defendants argue that the above-stated language incorporates by reference the customer agreement containing the arbitration clause, such that plaintiffs are bound by its terms.
When a party disputes the existence of a valid arbitration agreement, the trial judge must determine whether an agreement to arbitrate exists. See N.C. Gen.Stat. § 1-567.3(a) (1999); Burke v. Wilkins, 131 N.C.App. 687, 689, 507 S.E.2d 913, 914 (1998). The trial court's findings regarding the existence of an arbitration agreement are conclusive on appeal where supported by competent evidence, even where the evidence might have supported findings to the contrary. See Routh v. Snap-On Tools Corp., 108 N.C.App. 268, 272, 423 S.E.2d 791, 794 (1992)
. Accordingly, upon appellate review, we must determine whether there is evidence in the record supporting the trial court's findings of fact and if so, whether these findings of fact in turn support the conclusion that there was no agreement to arbitrate. See Prime South Homes v. Byrd, 102 N.C.App. 255, 258, 401 S.E.2d 822, 825 (1991).
To continue reading
Request your trial-
Ellison v. Alexander
...by competent evidence, even where the evidence might have supported findings to the contrary.” Sciolino v. TD Waterhouse Investor Servs., 149 N.C.App. 642, 645, 562 S.E.2d 64, 66 (2002) (citing Routh, 108 N.C.App. at 272, 423 S.E.2d at 794), disc. review denied, 356 N.C. 167, 568 S.E.2d 611......
-
Slaughter v. Swicegood
...by competent evidence, even where the evidence might have supported findings to the contrary." Sciolino v. TD Waterhouse Investor Servs., Inc., 149 N.C.App. 642, 645, 562 S.E.2d 64, 66 (citing Routh, 108 N.C.App. at 272, 423 S.E.2d at 794), disc. review denied, 356 N.C. 167, 568 S.E.2d 611 ......
-
Park v. Merrill Lynch
...Co., 305 N.Y. 82, 111 N.E.2d 218, 220-21 (1953). Plaintiffs further contend that this case is controlled by Sciolino v. TD Waterhouse Investor Servs., 149 N.C.App. 642, 562 S.E.2d 64, rev. denied, 356 N.C. 167, 568 S.E.2d 611 (2002). In that case, the plaintiffs opened a joint brokerage acc......
-
Dillon v. BMO Harris Bank, N.A.
...a pre-dispute Arbitration clause;” however, the plaintiffs testified that no customer agreement was ever provided. 149 N.C.App. 642, 643–44, 562 S.E.2d 64, 65–66 (2002). The defendants presented customer agreements that contained arbitration provisions and contended the plaintiffs were boun......