in the Court of Appeals 26 January 2017.
by plaintiff from order entered 13 April 2016 by Judge Gary
E. Trawick in Brunswick County Superior Court No. 15 CVS
Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by
Andrew L. Rodenbough and Charles S. Baldwin, IV, and Eldridge
Law Firm, PC, by James E. Eldridge, for plaintiff-appellant.
& Associates, PLLC, by H. Mark Hamlet, for
Town of Belville ("Plaintiff") appeals the April
13, 2016 order entered by the Honorable Gary Trawick in
Brunswick County Superior Court. The order denied
Plaintiff's motion to compel Urban Smart Growth, LLC
("Defendant") to submit to binding arbitration and
to stay all other proceedings in the dispute between these
parties. Plaintiff argues in this interlocutory appeal that
it has the contractual right to demand arbitration. However,
after careful review, we affirm the trial court's order
denying this motion because Plaintiff took actions contrary
to its contractual rights and waived any right to
& Procedural Background
October 2007, Plaintiff entered into an agreement
("Agreement") with Defendant concerning a
revitalization project in the town of Belville, North
Carolina. The project would include a "large-scale mixed
use development to be constructed in multiple phases
extending over a period of 20 years, and which may include
multi-family homes and/or other residential uses;
professional space; recreational and/or entertainment events
park; and, a multi-purpose municipal building that will
include a gathering hall and administrative offices."
to Section 8.05 of the Agreement, any dispute, claim or
controversy between the parties was to be resolved first
through negotiation, and then through arbitration. This
section set forth the necessary procedures, requirements and
time-frames to conduct arbitration. Either party could
initiate negotiations by notifying the other party in writing
the subject of the dispute and the relief sought. The party
that received such a writing had ten days to respond with
their position on and recommended solution to the dispute. If
this did not resolve the dispute, then a representative of
each party would meet within 30 days to attempt a resolution.
If at this point there is still no resolution, the matter
would be resolved through binding arbitration. Following
arbitration, the party who was determined to be in default by
breaching the Agreement had 120 days to cure or begin the
process to cure any such default.
30, 2013, Plaintiff notified Defendant by letter that it was
in default, and enumerated the reasons for default. Plaintiff
further notified Defendant that, because of this default,
Plaintiff wished to either renegotiate or terminate the
Agreement. Plaintiff had taken the first step outlined by
Section 8.05 to resolve any dispute, but the parties never
engaged in negotiations or arbitration.
7, 2015, more than two years later, Plaintiff filed an
Application and Order Extending Time to File Complaint to
assert claims against Defendant for breach of contract by
non-performance and breach of contract by repudiation of the
Agreement. Plaintiff stated it was seeking damages in excess
of $100, 000.00, a jury trial, attorney's fees, and
costs, and any further relief the court determined to be
necessary and proper. The order extending time was granted.
27, 2015, Plaintiff filed a complaint in this action alleging
breach of contract, non-performance, anticipatory
repudiation, and wrongful interference with contract.
Plaintiff's prayer for relief included compensatory
damages, attorney's fees, costs, and a demand for a jury
September 24, 2015, Defendant filed an Answer to
Plaintiff's Complaint and Counterclaims. Defendant
asserted multiple defenses, along with a counterclaim in
which it alleged breach of contract and breach of duty of
good faith by Plaintiff, and sought specific performance.
October 7, 2015, Plaintiff and Defendant filed a joint motion
for Recommendation for Designation of Exceptional Civil Case
pursuant to Rule 2.1 of the General Rules of Practice for
Superior and District Courts due to the complex evidentiary
and legal issues involved in the case, as well as the
voluminous amount of pretrial discovery anticipated by the
parties. The Honorable Ola M. Lewis, Senior Resident Superior
Court Judge for Brunswick County, entered an order on October
8, 2015, recommending the designation of this case as
exceptional to the Honorable Mark D. Martin, Chief Justice of
the North Carolina Supreme Court. On October 13, 2015, Chief
Justice Martin ...