Earl v. CGR Dev. Corp.

773 S.E.2d 551, 242 N.C. App. 20, 2015 N.C. App. LEXIS 569
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2015
DocketNo. COA14–1219.
StatusPublished
Cited by5 cases

This text of 773 S.E.2d 551 (Earl v. CGR Dev. Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Earl v. CGR Dev. Corp., 773 S.E.2d 551, 242 N.C. App. 20, 2015 N.C. App. LEXIS 569 (N.C. Ct. App. 2015).

Opinion

*553TYSON, Judge.

*21CGR Development Corporation and Carefree Cove Community Association, Inc. (collectively, "Defendants") appeal from order denying their motion to dismiss and alternative motion to stay action pending arbitration and to compel arbitration. We reverse and remand.

I. Factual Background

Carefree Cove is a residential subdivision located within Ashe and Watauga Counties, North Carolina. All lots in Carefree Cove are subject to the Declaration of Covenants and Restrictions of Carefree Cove ("the Restrictive Covenants"). Defendant CGR Development Corporation is the Declarant that filed the Restrictive Covenants, which were recorded on 12 July 2001 in the Ashe County Registry. Defendant Carefree Cove Community Association, Inc. ("the Association") is the homeowner's association for Carefree Cove.

The Association is subject to the Bylaws of Carefree Cove Community Association, Inc. ("the Bylaws"). Article 10 of the Bylaws provides, in part: "Prior to the institution of litigation, the parties to a dispute shall submit the dispute to the American Arbitration Association for binding arbitration."

Plaintiffs own two lots in Carefree Cove, conveyed subject to all covenants and restrictions set out in the Restrictive Covenants. On 17 December 2013, Plaintiffs filed a complaint against Defendants alleging Defendant CGR "refused to perform all affirmative acts required ... in the Restrictive Covenants, to convey the common areas to the association, turn over the management of Association and allow the members to elect at least majority [sic] of the Board of Administrators of the Association as set forth in ... the Declaration." Plaintiffs sought a declaratory judgment to require Defendant CGR to perform these affirmative acts. Plaintiffs' claim for relief requested an order compelling Defendant CGR to "convey the common areas to the [A]ssociation, turn over the management of Association and allow the members to elect at least majority [sic] of the Board of Administrators of the Association."

Defendants moved to dismiss the action for failure to state a claim upon which relief can be granted due to the arbitration clause in the Bylaws. Defendants moved, in the alternative, to stay the action pending arbitration and compel arbitration.

The trial court entered an order denying Defendants' motion to dismiss and alternative motion to stay the action pending arbitration and to compel arbitration on 20 August 2014.

*22Defendants' gave timely notice of appeal to this Court.

II. Issues

Defendants argue the trial erred by (1) failing to include required findings in its order; and (2) denying Defendants' motion to dismiss and motion to stay the action and compel arbitration.

III. Review of Order Denying Request for Arbitration

Defendants' appeal is interlocutory. An order or judgment is interlocutory if it does not settle all the pending issues and "directs some further proceeding preliminary to the final decree." Heavner v. Heavner, 73 N.C.App. 331, 332, 326 S.E.2d 78, 80 (citation omitted), disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985). The trial court's denial of Defendants' motion to compel arbitration is interlocutory. Moose v. Versailles Condominium Ass'n, 171 N.C.App. 377, 381, 614 S.E.2d 418, 422 (2005) (citation omitted).

An interlocutory order is generally not immediately appealable. An exception to this rule exists if the appellant shows the order affects a substantial right, which will be lost if it is not reviewed prior to the issuance of a final judgment. N.C. Gen.Stat. §§ 1-277(a) (2013), 7A-27(b)(1) (2013) ; Guilford Cnty. ex rel. Gardner v. Davis, 123 N.C.App. 527, 529, 473 S.E.2d 640, 641 (1996).

This Court has repeatedly held "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, Inc. v. Byrd, 102 N.C.App. 255, 258, 401 S.E.2d 822, 825 (1991) (citations omitted).

*554See Moose, 171 N.C.App. at 381, 614 S.E.2d at 422 ; Ellis-Don Constr., Inc. v. HNTB Corp., 169 N.C.App. 630, 633, 610 S.E.2d 293, 295 (2005) ; Boynton v. ESC Med. Sys., Inc., 152 N.C.App. 103, 106, 566 S.E.2d 730, 732 (2002). We acquired jurisdiction to hear Defendants' appeal from the trial court's interlocutory order denying arbitration.

IV. Analysis

Defendants argue, and Plaintiffs concede, the trial court's order lacks the required findings and conclusions to show whether this matter is subject to mandatory arbitration.

A. Standard of Review

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Cite This Page — Counsel Stack

Bluebook (online)
773 S.E.2d 551, 242 N.C. App. 20, 2015 N.C. App. LEXIS 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earl-v-cgr-dev-corp-ncctapp-2015.