C. TERRY HUNT INDUSTRIES, INC., Plaintiff,
KLAUSNER LUMBER TWO, LLC, Defendant.
in the Court of Appeals 19 April 2017.
by plaintiff from orders entered 31 May 2016 and 17 June 2016
by Judge Alma L. Hinton in Halifax County No. 15CVS1112
Hamilton Stephens Steele Martin, PLLC, by Nancy S. Litwak
and Erik M. Rosenwood, for plaintiff-appellant.
Pruet, PLLC, by David S. Pokela and Eric H. Biesecker, for
Terry Hunt Industries, Inc. ("Hunt") appeals from
the order filed on May 31, 2016 granting the motion to compel
arbitration made by Klausner Lumber Two, LLC
("Klausner"). Hunt also appeals from the order
filed on June 17, 2016 denying both the motion to reconsider
the order granting the motion to compel arbitration, and the
motion to alter or amend the order. The interlocutory order
compelled arbitration in Hunt's lawsuit claiming breach
of a preliminary agreement for a construction project. Hunt
argues that interlocutory review is proper because the order
affects a substantial right. We disagree and dismiss the
& Procedural Background
August 19, 2014, Hunt and Klausner entered into a Preliminary
Contract Agreement and Authorization to Proceed (the
"Preliminary Agreement"). In the Preliminary
Agreement, Hunt agreed to provide the materials and labor
necessary to construct a sawmill on property owned by
Klausner in Halifax County, North Carolina (the " N.C.
Project"). The Preliminary Agreement preceded the
anticipated execution of a contract (the " N.C.
Contract") that would set the terms and conditions for
the N.C. Project.
Preliminary Agreement incorporated the contract used by the
parties for a prior sawmill construction project completed in
Live Oak, Florida (the "F.L. Contract"). This
agreement provided, in pertinent part:
1.2 WHEREAS [Klausner] hereby intends to engage [Hunt] to
undertake and perform all Work . . . in accordance with the [
N.C. ] Contract Documents for [Klausner's] [ N.C.
Project], including the obligations and related liabilities
as defined in the [ N.C. ] Contract, and [Hunt] has agreed to
such engagement upon and subject to the terms and conditions
of the [N.C]. Contract[.]
2.1 In this Agreement, words and expressions shall have the
same meanings as are respectively assigned to them in the [
N.C. ] Contract. The form and language of the [ N.C. ]
Contract . . . shall be based on that used previously by the
Parties for the Sawmill Project located in Live Oak, Florida.
References in this Agreement to specific Articles or language
to be included in the [ N.C. ] Contract shall refer to those
same Articles and language included in the [F.L. Contract].
the parties agreed that work on the N.C. Project would
commence once the Preliminary Agreement was executed, prior
to the completion of any other documents pertaining to the
N.C. Contract. However, pursuant to the Preliminary
Agreement, once the remaining N.C. Contract documents were
agreed upon by the two parties, "they shall, along with
[the Preliminary Agreement], constitute the [ N.C. Contract]
F.L. Contract, the form and language of which the parties
agreed would form the basis of the N.C. Contract, contained a
three-step dispute resolution procedure in Sections
13.11-13.13. This procedure was enumerated in the F.L.
Contract as follows:
13.11 Direct Discussions. If the Parties cannot
reach resolution on a matter relating to or arising out of
the Agreement, the Parties shall endeavor to reach resolution
through good faith direct discussions between the
Parties' representatives . . . . If the Parties'
representatives are not able to resolve such matter . . .
senior executives of the Parties shall meet . . . to endeavor
to reach resolution. If the dispute remains unresolved . . ...