Etheridge v. Levitsky ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.
NO. COA13-350
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
ANN E. ETHERIDGE,
Plaintiff
Currituck County
v.
No. 11 CVS 33
FRANK C. LEVITSKY and
USAA INS. CO. (unnamed)
Defendants
Appeal by plaintiff from orders entered 27 July 2012 and 10
August 2012 by Judge Henry W. Hight, Jr., and by defendant from
order entered 19 March 2013 by Judge Walter H. Godwin, Jr., in
Currituck County Superior Court. Heard in the Court of Appeals
27 August 2013.
Aycock & Butler, PLLC, by Charlie Aycock and Matthew J.
Spencer, for Plaintiff.
Fraim & Fiorella, P.C., by Edward A. Fiorella, Jr., for
Defendant USAA Ins. Co.
ERVIN, Judge.
Plaintiff Ann E. Etheridge appeals from an order entered by
Judge Hight on 27 July 2012 confirming an arbitration award and
an order entered by Judge Hight on 10 August 2012 apparently
denying Plaintiff’s motion for a new trial and Defendant USAA
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Insurance Company appeals from an order entered by Judge Godwin
denying its motion to dismiss Plaintiff’s appeal. On appeal,
Plaintiff argues that Judge Hight erred by confirming the
arbitration award because the arbitration panel based its
decision upon an issue not submitted to the panel for
arbitration and by failing to grant Plaintiff’s motion for a new
trial, in which Plaintiff requested that the trial court’s order
be amended to include findings of fact and conclusions of law,
and Defendant USAA argues that Judge Godwin erred by failing to
dismiss Plaintiff’s appeal on the grounds that she failed to
note her appeal in a timely fashion and failed to comply with
certain provisions of the North Carolina Rules of Appellate
Procedure. After careful consideration of the parties’
challenges to Judge Hight’s and Judge Godwin’s orders in light
of the record and the applicable law, we conclude that we should
reach the merits of Plaintiff’s challenges to Judge Hight’s
orders and that the challenged orders should be affirmed.
I. Factual Background
Plaintiff was a passenger on a motorcycle driven by
Defendant Frank C. Levitsky that was involved in an accident on
12 September 2009 in Currituck County. At the time of the
accident, Plaintiff had underinsured motorist coverage under a
policy issued by Defendant USAA Casualty Insurance Company,
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which afforded Plaintiff the right to seek resolution of certain
disputes which she might have with Defendant USAA arising from a
claim under her underinsured motorist coverage by means of
arbitration.
On 20 January 2011, Plaintiff filed a complaint alleging
that she had suffered permanent injury as a result of Defendant
Levitsky’s negligence. After Defendant Levitsky’s liability
carrier, Progressive Insurance Company, tendered its policy
limits of $50,000, Plaintiff released Progressive, which was
subsequently absolved from any further duty to defend Defendant
Levitsky, and entered into a covenant not to seek a personal
recovery against Defendant Levitsky.
On 22 August 2011, Plaintiff filed a motion to stay further
proceedings in this case and to compel arbitration in reliance
upon the underinsured motorist provisions of the USAA policy.1
On 29 August 2011, Defendant USAA filed an answer in which it
denied that Plaintiff had been injured as a result of Defendant
Levitsky’s negligence and asserted that Plaintiff’s claim was
barred by contributory negligence and assumption of the risk.
On 1 September 2011, Defendants filed a response to Plaintiff’s
1
According to the policy in question, the insured might
“demand to settle” any “dispute” concerning “[w]hether that
insured is legally entitled to recover compensatory damages from
the owner or driver of an uninsured motor vehicle or
underinsured motor vehicle” or “the amount of such damages” by
arbitration.
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motion to compel arbitration and stay proceedings in which it
requested that Plaintiff’s motion be denied in order to allow
the parties to conduct discovery and participate in mediation.
On 7 October 2011, Judge Jerry R. Tillett entered an order
granting Plaintiff’s motion to compel arbitration.
On 27 March 2012, the parties entered into an Arbitration
Agreement and Stipulations, filed on 9 April 2012, which
provided that the arbitration panel would determine, “[f]rom the
evidence presented, what amount of damages, if any, is
recoverable by Plaintiff in excess of the sum ($50,000.00) paid
by the primary carrier?” In addition, the parties stipulated,
for purposes of the arbitration proceeding, that “Plaintiff
alleges that Defendant Levitsky was negligent in the operation
of his motor vehicle and that his negligence was a proximate
cause of some injury to Plaintiff” and that “Defendant
[Levitsky] alleges that he was not negligent, or in the
alternative, as a gratuitous passenger, plaintiff assumed the
risk of her injury (contributory negligence).”
A panel of three arbitrators conducted an arbitration
hearing relating to the claims that Plaintiff had asserted
against Defendants on 30 March 2012. On 30 March 2012, the
arbitration panel signed an award providing that “[t]he
plaintiff has failed to prove by a preponderance of the evidence
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that the wreck and any injuries suffered by the plaintiff were
caused by the negligence of the defendant Frank C. Levitsky.”
On 3 April 2012, Plaintiff sent a letter to the panel members
requesting that they correct their decision and make an award in
favor of Plaintiff on the grounds that the issue of whether
Plaintiff had been injured by Defendant Levitsky’s negligence
had not been submitted to the panel for its consideration. On
11 April 2012, Defendant USAA sent a letter to the members of
the arbitration panel requesting that they deny Plaintiff’s
request and file the arbitration award with the court. On 18
April 2012, the arbitration panel, over the dissent of one
member, ordered that “this arbitration hearing resume only for
consideration of evidence from both parties on the issue of the
defendant Levitsky’s negligence, if any, and the plaintiff’s
contributory negligence, if any.”2
On 9 May 2012, Plaintiff filed a motion in which she
contended that the arbitration agreement did not provide for a
decision with respect to the issue of liability and requested
that “the court . . . order the arbitration panel to make an
award pursuant to the issue submitted under the agreement.” On
18 June 2012, Plaintiff amended the 9 May 2012 motion to include
a request that the court “vacate the [arbitration] verdict/award
2
The record does not reflect that any further proceeding was
ever held before the arbitration panel.
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pursuant to [N.C. Gen. Stat. §] 1-569.24(a)(2) and order the
arbitration panel to make an award pursuant to the issue
submitted under the agreement.” On 8 June 2012, Defendant USAA
filed a motion seeking the entry of an order confirming the
arbitration award pursuant to N.C. Gen. Stat. § 1-569.22. After
a hearing concerning these motions was held on 16 July 2012,
Judge Hight entered an order on 27 July 2012 granting
Defendant’s motion to confirm the arbitration award and ordering
that the award be filed with the office of the Clerk of Superior
Court.
On 6 August 2012, Plaintiff filed a motion for a new trial
in which she requested that Judge Hight’s order confirming the
arbitration award be amended to include findings of fact and
conclusions of law and to reflect that Plaintiff’s motion had
been altered from a motion to correct the arbitration award to a
motion to vacate the award. On 10 August 2012, Judge Hight
entered a second order granting Defendant USAA’s motion to
confirm the arbitration award which was identical to the 27 July
2012 order. As a result of her concern that the 10 August 2012
order would be construed as a denial of Plaintiff’s motion for a
new trial, Plaintiff noted an appeal from both of Judge Hight’s
orders on 10 September 2012.
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On 14 September 2012, Plaintiff entered into an arrangement
with the court reporter to prepare a transcript of the hearing
which had been held before Judge Hight. On 8 November 2012, the
court reporter delivered the hearing transcript to counsel for
Plaintiff. On 17 December 2012, Plaintiff sought and obtained
an extension of time to serve her proposed record upon
Defendant. Plaintiff served a proposed record on appeal on
Defendant on 14 January 2013. On or about 23 January 2013,
Defendant USAA served a motion on Plaintiff seeking to have
Plaintiff’s appeal dismissed on the grounds that Plaintiff had
failed to file and serve a copy of her agreement with the court
reporter for the preparation of the hearing transcript, that
Plaintiff had failed to serve her proposed record on appeal upon
Defendant USAA in a timely manner, and that Plaintiff had failed
to provide Defendant USAA with notice of her intention to seek
an extension of time to serve her proposed record on appeal.
This motion to dismiss was filed on 21 February 2013. After a
hearing held on 18 February 2013, Judge Walter H. Godwin, Jr.,
entered an order denying Defendant USAA’s dismissal motion on 19
March 2013.
II. Substantive Legal Analysis
A. Defendant’s Appeal
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In the sole argument advanced in its appellant’s brief,
Defendant USAA challenges the validity of Judge Godwin’s
decision to deny its motion to dismiss Plaintiff’s appeal. More
specifically, Defendant USAA argues that Plaintiff did not note
an appeal from the 27 July 2012 order in a timely manner; that
Plaintiff failed to file documentation indicating that she had
contracted with the court reporter for the delivery of the
transcript with the Clerk of Superior Court or serve that
documentation on counsel for Defendant in a timely manner; and
that Plaintiff failed to serve a proposed record on appeal in a
timely manner given that the order extending Plaintiff’s time to
serve the record on appeal had been improperly obtained on an ex
parte basis, with this contention resting on the theory that,
since Plaintiff failed to serve any documentation that the
transcript had been ordered from the court reporter in a timely
manner and since the court reporter’s certificate that the
transcript had been delivered was not filed or served in a
timely manner, Plaintiff’s extension motion had been filed after
the expiration of the time within which the proposed record on
appeal should have been served on counsel for Defendant. Aside
from the fact that most of the arguments advanced in support of
Defendant’s challenge to Judge Godwin’s order rest on non-
jurisdictional, rather than jurisdictional, deficiencies in the
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appellate process, Dogwood Dev. & Mmgt. Co., LLC v. White Oak
Transport Co., Inc., 362 N.C. 191, 198-99, 657 S.E.2d 361, 365-
66 (2008) (stating that “a party’s failure to comply with
nonjurisdictional rule requirements normally should not lead to
dismissal of the appeal” unless the rule violations “rise to the
level of a ‘substantial failure’ or ‘gross violation’”), the
record contains no indication that Defendant actually noted an
appeal from Judge Godwin’s order3 or filed a separate dismissal
motion with this Court. However, given that at least one of
Defendant’s arguments does raise jurisdictional issues,4 Booth v.
3
According to N.C.R. App. P. 28(c), an appellee is entitled
to “present issues on appeal based on any action or omission of
the trial court that deprived the appellee of an alternative
basis in law for supporting the judgment, order, or other
determination from which appeal has been taken.” However, a
contention that the trial court erroneously failed to dismiss
another party’s appeal is not the sort of “alternative basis”
“supporting the . . . order from which appeal has been taken”
contemplated by N.C.R. App. P. 28(c) given that such an
“alternative basis” needs to be another ground upon which the
trial court could have reached the same substantive result
embodied in the “judgment, order, or other determination from
which appeal has been taken” rather than a basis for precluding
the opposing party from obtaining appellate review of the
challenged “judgment, order, or other determination.”
4
The extent to which Plaintiff’s notice of appeal from Judge
Hight’s 27 July 2012 order was timely filed and served depends
upon the extent to which Plaintiff’s motion for a new trial,
which was filed on 6 August 2012, sufficed to trigger the
provision of N.C.R. App. P. 3(c)(3) tolling the period of time
within which a notice of appeal must be filed in a civil case in
the event that any party makes a timely motion pursuant to N.C.
Gen. Stat. § 1A-1, Rules 50(b), 52(b) or 59. Although we are
inclined to agree with Judge Godwin that Plaintiff’s motion
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Utica Mut. Ins. Co., 308 N.C. 187, 189, 301 S.E.2d 98, 99-100
(1983) (stating that a “[f]ailure to give timely notice of
appeal in compliance with . . . Rule 3 . . . is jurisdictional,
and an untimely attempt to appeal must be dismissed”), and the
fact that “[a] jurisdictional default . . . precludes the
appellate court from acting in any manner other than to dismiss
the appeal,” Dogwood Dev., 362 N.C. at 197, 657 S.E.2d at 365,
we elect, without expressing any opinion concerning the validity
of Defendant’s challenge to the timeliness of Plaintiff’s notice
of appeal and in the exercise of our discretion, to treat the
record and briefs as a request for the issuance of writ of
certiorari and grant the requested writ for the purpose of
addressing Plaintiff’s challenges to Judge Hight’s orders
upholding the arbitration award and apparently denying
Defendant’s request for reconsideration. Anderson v.
Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997)
(stating that “[w]e conclude that [N.C.R. App. P.] 21(a)(1)
gives an appellate court the authority to review the merits of
an appeal by certiorari even if the party has failed to file
notice of appeal in a timely manner”). As a result, we will now
operated to extend the time within which Plaintiff was entitled
to note her appeal from the 27 July 2012 order, we need not make
a definitive decision with respect to this issue given that we
have elected to issue a writ of certiorari to permit review of
Plaintiff’s challenges to Judge Hight’s orders on our own
motion.
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turn our attention to the merits of Plaintiff’s challenges to
Judge Hight’s orders.
B. Plaintiff’s Appeal
1. Motion to Vacate Arbitration Award
In her initial challenge to the trial court’s orders,
Plaintiff argues that the trial court erred in failing to grant
her motion to vacate the arbitration award because the
arbitration panel exceeded its authority by basing its award on
an issue not submitted for its decision. More specifically,
Plaintiff contends that the issue of Defendant Levitsky’s
negligence was not placed in dispute by the arbitration
agreement and that the only issue properly before the
arbitration panel was the amount of damages to which Plaintiff
was entitled. We do not find Plaintiff’s argument persuasive.
According to well-established North Carolina law,
“[j]udicial review of an arbitration award is severely limited
in order to encourage the use of arbitration and in turn avoid
expensive and lengthy litigation[,]” so that “‘an arbitration
award is presumed valid, and the party seeking to vacate it must
shoulder the burden of proving the grounds for attacking its
validity.’” First Union Secs., Inc. v. Lorelli, 168 N.C. App.
398, 400, 607 S.E.2d 674, 676 (2005) (citing Remmey v.
PaineWebber, Inc., 32 F.3d 143, 146 (4th Cir. 1994), cert
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denied, 513 U.S. 1112, 115 S. Ct. 903, 130 L. Ed. 2d 786 (1995),
and quoting Carpenter v. Brooks, 139 N.C. App. 745, 751, 534
S.E.2d 641, 646, disc. review denied, 353 N.C. 261, 546 S.E.2d
91 (2000)); see also Turner v. Nicholson Properties, Inc., 80
N.C. App. 208, 211, 341 S.E.2d 42, 45 (stating that “‘[a]
foundation of the arbitration process is that by mutual consent
the parties have entered into an abbreviated adjudicative
procedure, and to allow “fishing expeditions” to search for ways
to invalidate the award would tend to negate this policy’”)
(quoting Fashion Exhibitors v. Gunter, 291 N.C. 208, 217, 230
S.E.2d 380, 387 (1976)), disc. review denied, 317 N.C. 714, 347
S.E.2d 457 (1986). For that reason, the “general rule [is] that
‘errors of law or fact, or an erroneous decision of matters
submitted to [arbitration], are insufficient to invalidate an
award fairly and honestly made.’” Turner, 80 N.C. App. at 212,
341 S.E.2d at 45 (quoting Fashion Exhibitors v. Gunter, 41 N.C.
App. 407, 411, 255 S.E.2d 414, 417–18 (1979)). As a result,
“[i]f the dispute [resolved by the arbitrator] is within the
scope of the arbitration agreement, then the [trial] court must
confirm the [arbitration] award unless one of the statutory
grounds for vacating or modifying the award” enumerated in N.C.
Gen. Stat. §§ 1-569.23 and 569.24 exists. Carteret County v.
United Contractors of Kinston, Inc., 120 N.C. App. 336, 346, 462
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S.E.2d 816, 823 (1995) (citing FCR Greensboro, Inc. v. C & M
Investments, 119 N.C. App. 575, 577, 459 S.E.2d 292, 294, cert.
denied, 341 N.C. 648, 462 S.E.2d 510 (1995)).
According to N.C. Gen. Stat. § 1-569.23(a)(4), “[u]pon
motion to the court by a party to an arbitration proceeding, the
court shall vacate an award made in the arbitration proceeding
if” “[a]n arbitrator exceeded the arbitrator’s powers[.]”
“Before the award can be vacated on the grounds that the
arbitrator[] exceeded [his] authority, the record must
objectively disclose that the arbitrator[ ] did exceed [his]
authority in some respect.” G.L. Wilson Building Co. v.
Thorneburg Hosiery Co., Inc., 85 N.C. App. 684, 689, 355 S.E.2d
815, 818, disc. review denied, 320 N.C. 798, 361 S.E.2d 75(1987).
An arbitrator’s ability to act is both created and limited
by the authority conferred on him by the parties’ arbitration
agreement. See Calvine Cotton Mills, Inc. v. Textile Workers
Union, 238 N.C. 719, 722, 79 S.E.2d 181, 183 (1953) (citing
Thomasville Chair Co. v. United Furniture Workers, 233 N.C. 46,
49, 62 S.E.2d 535, 537 (1950)) (stating that “an arbitrator must
act within the scope of the authority conferred on him by the
arbitration agreement”). For that reason, the only claims which
an arbitrator is entitled to decide are those submitted for his
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or her decision. Faison & Gillespie v. Lorant, 187 N.C. App.
567, 573, 654 S.E.2d 47, 51 (2007). “To determine whether the
parties agreed to submit a particular dispute or claim to
arbitration, we must look at the language in the agreement,
viz., the arbitration clause, and ascertain whether the claims
fall within its scope.” Rodgers Builders, Inc. v. McQueen, 76
N.C. App. 16, 23-24, 331 S.E.2d 726, 731 (1985), disc. review
denied, 315 N.C. 590, 341 S.E.2d 29 (1986). As a result, the
ultimate issue raised by Plaintiff’s challenge to the 27 July
2012 order is the extent, if any, to which the arbitration
agreement allowed the arbitrators to consider the issue of
whether Plaintiff had been injured as the result of Defendant
Levitsky’s negligence, with this issue being a matter of
contract construction which we review using a de novo standard
of review. Shelton v. Duke Univ. Health Sys., Inc., 179 N.C.
App. 120, 123, 633 S.E.2d 113, 115 (2006), disc. review denied,
361 N.C. 357, 643 S.E.2d 591 (2007).
“There have been ‘only a few cases in which our courts have
held that an arbitrator exceeded his powers.’” Smith v. Young
Moving & Storage, Inc., 167 N.C. App. 487, 490, 606 S.E.2d 173,
176 (2004) (quoting Howell v. Wilson, 136 N.C. App. 827, 830,
526 S.E.2d 194, 196 (2000)).
In Wilson Building Co. v. Thorneburg Hosiery
Co., 85 N.C. App. 684, 355 S.E.2d 815-15-
(1987), we concluded that, because the
amount of attorney’s fees for debts and
obligations is set by statute, the
arbitrator exceeded his authority by
ordering fees in excess of that amount.
More instructive, however, is the case of
FCR Greensboro, Inc. v. C & M Investments,
119 N.C. App. 575, 459 S.E.2d 292 (1995).
In that case, the parties submitted for
arbitration the amount of liquidated damages
caused by the defendant completing
construction of a building after the agreed-
upon date. The arbitrator awarded plaintiff
these damages, but then also awarded
plaintiff two other kinds of damages: (1)
liquidated damages caused by delays in
starting construction; and (2) reimbursement
for certain changes plaintiff made to the
sprinkler system that was installed. We
held that the arbitrator exceeded his powers
by making these additional awards.
These two cases illustrate that an
arbitrator exceeds his authority when he
arbitrates additional claims and matters not
properly before him.
Faison & Gillespie, 187 N.C. App. at 574-75, 654 S.E.2d at 52(quoting Howell, 136 N.C. App. at 830, 526 S.E.2d at 196(citations omitted)). “In other words, the arbitrators in these
earlier cases acted contrary to the express authority conferred
on them by statute and by the language of the parties’ private
arbitration agreement.” Faison & Gillespie, 187 N.C. App. at
575, 654 S.E.2d at 52. No such situation exists in the present
case.
The arbitration agreement submitted by the parties to the
arbitration panel in this case provided that the arbitrators
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were to determine “what amount of damages, if any, is
recoverable by the Plaintiff in excess of the sum ($50,000.00)
paid by the primary carrier,” noting in the accompanying
stipulations that Plaintiff had alleged that Defendant was
negligent and that Defendant had alleged he was not negligent
or, alternatively, that Plaintiff was contributorily negligent.
The relevant language contained in the arbitration agreement
clearly shows that the extent to which Plaintiff was entitled to
recover any damages, the extent to which Defendant Levitsky was
negligent, and the extent to which Plaintiff was contributorily
negligent were all matters of dispute between the parties. As
if the literal language of the arbitration agreement, which
contained “if any” language clearly establishing that the
arbitration panel was under no obligation to make any damage
award in favor of Plaintiff,5 did not suffice to make the nature
5
In seeking to persuade us that the presence of the “if any”
language in the arbitration agreement was not sufficient to
indicate the existence of an issue concerning the extent to
which Plaintiff was injured as the result of Defendant
Levitksy’s negligence or her own contributory negligence,
Plaintiff directs our attention to decisions such as Baker v.
Malan Constr. Corp., 255 N.C. 302, 305, 121 S.E.2d 731, 733
(1961) (quoting McIntosh, N.C. Prac. & Proc. § 1353 (2d ed.), in
which the Supreme Court held that “‘[i]t is error to submit the
single issue, “How much, if anything, is the plaintiff entitled
to recover?”’” We do not believe that legal principles
governing the manner in which issues should be submitted to a
jury have much bearing upon the manner in which disputed
contractual language should be construed given that the
construction of contractual language involves an effort to
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of the dispute between the parties clear, the record indicates
that the first draft of the arbitration agreement, which
Plaintiff sent to Defendant USAA for approval, contained no
discussion concerning Defendant USAA’s position with respect to
Defendant Levitsky’s negligence and Plaintiff’s contributory
negligence, a fact which shows that the arbitration agreement
was amended to add language setting out Defendant USAA’s
contentions with respect to those issues. In view of the fact
that the arbitration agreement was amended to include a
description of Defendant USAA’s contentions, Plaintiff was fully
on notice that Defendant USAA had not conceded that Plaintiff
was entitled to an award of damages in the arbitration
proceeding. For all of these reasons, we have no difficulty in
concluding that the arbitration panel was expressly authorized
by the arbitration agreement to determine whether Plaintiff was
entitled to an award of additional damages at all. As a result,
since the record does not “objectively disclose that the
arbitrators did exceed their authority in some respect,” Wilson
Building Co., 85 N.C. App. at 689, 355 S.E.2d at 818, we
conclude that Plaintiff’s challenge to Judge Hight’s decision to
determine the intent of the parties while the form in which
issues are submitted for a jury’s consideration represents an
attempt to ensure that the jury is directly confronted with and
explicitly resolves the issues which are in dispute between the
parties.
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confirm the arbitration award and deny her request that the
award be vacated lacks merit.
2. Motion to Confirm Arbitration Award
Secondly, Plaintiff contends that the trial court erred by
granting Defendant USAA’s motion for the entry of an order
confirming the arbitration award on the grounds that the trial
court should have granted Plaintiff’s motion to vacate the
arbitration award instead. In support of this contention,
Plaintiff directs our attention to the arguments which she
advanced in support of her challenge to Judge Hight’s decision
to deny her motion to vacate the arbitration award. We do not
find Plaintiff’s argument persuasive.
According to N.C. Gen. Stat. § 1-569.22, “[a]fter a party
to an arbitration receives notice of an award, the party may
make a motion to the court for an order confirming the award,”
with the court being obligated to enter an order “confirming the
award . . . unless the award is modified or corrected pursuant
to [N.C. Gen. Stat. §] 1-569.20 or [N.C. Gen. Stat. §] 1-569.24
or is vacated pursuant to [N.C. Gen. Stat. §] 1-569.23.” As a
result of the fact that he correctly refrained from vacating the
arbitration award, Judge Hight had no choice except to confirm
the award pursuant to N.C. Gen. Stat. § 1-569.22 and did not err
by doing so.
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3. Motion for New Trial
Finally, Plaintiff contends that Judge Hight erred by
failing to grant her motion for a new trial, in which she
requested that the trial court’s order confirming the
arbitration award be amended to include findings of fact and
conclusions of law. According to Plaintiff, the record
demonstrates the existence of material issues of fact which the
trial court was required to resolve through the making of
adequate findings of fact and conclusions of law. We are not
persuaded by Plaintiff’s argument.
“The trial judge is not required to make specific findings
of facts and conclusions of law [in resolving the issues raised
by a motion] absent a request to do so by the parties” made
before the entry of the challenged order. J.M. Dev. Grp. v.
Glover, 151 N.C. App. 584, 586, 566 S.E.2d 128, 130 (2002)
(citations omitted).6 Absent such a request, it is “‘presumed
6
Although Plaintiff’s argument may rest upon the assumption
that the 27 July 2012 order resulted from “an action[] tried
upon the facts without a jury,” N.C. Gen. Stat. § 1A-1, Rule
52(a)(1), rather than a decision made as the result of the
filing of a motion, N.C. Gen. Stat. § 1A-1, Rule 52(a)(2),
Plaintiff has made no explicit argument to that effect in her
brief and has failed to explain why the proceedings which are
before us in this case should not be treated as resulting from
“motions,” which is how the filings made by both parties are
described in the literal language of N.C. Gen. Stat. §§ 1-
569.22 and 1-569.23. Viar v. N.C. Dept. of Transp., 359 N.C.
400, 402, 610 S.E.2d 360, 361 (2005) (stating that ”[i]t is not
the role of the appellate courts . . . to create an appeal for
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that the Judge, upon proper evidence, found facts to support’”
the ruling. Allen v. Wachovia Bank & Trust Co., N.A., 35 N.C.
App. 267, 269, 241 S.E.2d 123, 125 (1978) (quoting Haiduven v.
Cooper, 23 N.C. App. 67, 69, 208 S.E.2d 223, 225 (1974)).
Although Judge Hight did not make any findings of fact or
conclusions of law in support of the decisions reflected in the
27 July 2012 order, the record contains no indication that
Plaintiff requested that such findings of fact and conclusions
of law be made prior to the entry of that order. As a result,
Judge Hight did not err by denying Plaintiff’s request that the
27 July 2012 order be amended so as to include findings of fact
and conclusions of law.7
an appellant”). As a result, we conclude that any obligation on
the part of Judge Hight to make findings and conclusions would
have been governed by N.C. Gen. Stat. § 1A-1, Rule 52(a)(2)
rather than N.C. Gen. Stat. § 1A-1, Rule 41 or N.C. Gen. Stat. §
1A-1, Rule 52(a)(1).
7
In her brief, Plaintiff contends that she is entitled to a
new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(2)
based upon alleged misconduct by Defendant USAA, with this
contention having been predicated on the assertion that
Defendant USAA “set forth unsworn facts that are disputed by the
sworn testimony of the neutral arbitrator.” Plaintiff’s
assertion, which appears to stem from a dispute between the
parties over the validity of an assertion that Defendant USAA
appears to have made in the court below to the effect that
Plaintiff knew that the issue of liability was being litigated
before the arbitration panel and had remained silent, is
unaccompanied by any explanation of the manner and context in
which Defendant USAA presented these “unsworn facts” to Judge
Hight or the manner in which the presentation of these “unsworn
facts” affected the outcome. Instead of moving to strike the
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III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Plaintiff’s challenges to the trial court’s orders have
merit. As a result, the trial court’s orders should be, and
hereby are, affirmed.
AFFIRMED.
Judges MCGEE and STEELMAN concur.
Report per Rule 30(e).
“unsworn facts” in question or requesting that Judge Hight make
findings of fact and conclusions of law addressing the issues
raised by these “unsworn facts,” Plaintiff responded by simply
filing contradictory affidavits. As a result of the fact that
Plaintiff appears to have refrained from seeking any relief from
Judge Hight stemming from the presentation of these “unsworn
facts,” Plaintiff is barred from raising any issue relating to
Judge Hight’s failure to make findings of fact addressing the
use of these “unsworn facts” on appeal. As this Court has
recently stated in reliance upon N.C.R. App. P. 10(a)(1), “[i[t
is a well-established rule in our appellate courts that a
contention not raised and argued in the trial court may not be
raised and argued for the first time on appeal.” In re
Hutchinson, __ N.C. App. __, __, 723 S.E.2d 131, 133, disc.
review denied, 365 N.C. 564, 724 S.E.2d 910 (2012). Thus,
having failed to advance this contention in support of her
request for reconsideration, Plaintiff is precluded from relying
on this argument before this Court.