McNeal v. Black , 61 N.C. App. 305 ( 1983 )

300 S.E.2d 575 (1983)

H. Mark McNEAL
v.
Frank BLACK.

No. 8226SC350.

Court of Appeals of North Carolina.

March 15, 1983.

Helms, Mulliss & Johnston by N.K. Dickerson, III, Charlotte, for movant-appellee.

Weaver & Bennett by F. Lee Weaver, Matthews, for respondent-appellant.

BRASWELL, Judge.

Black argues in his brief that the court erred in refusing to grant his motion for a jury trial and his motion to have NASD's Rules of Fair Practice and Code of Arbitration Procedure declared unconstitutional. Black contends that he was compelled to submit to arbitration since he was subject to disciplinary action had he refused to arbitrate. He urges this Court to regard the arbitration agreement as coercive, compelling him to choose arbitration rather than risk termination of his employment and the loss of his license.

We do not agree with Black that his submission to arbitration was forced. Black voluntarily signed the Uniform Submission Agreement and expressly consented to arbitration. It is true that this dispute was required to be submitted to arbitration by the NASD Code of Arbitration Procedure:

"Sec. 2.

(a) Required Submissions

Any dispute, claim or controversy subject to arbitration under this Code arising on or after the effective date of the relevant section or subsection hereof shall be submitted to arbitration pursuant to this Code at the instance of:

* * * * * *

(2) a public customer against a member and/or a person associated with a member;"

However, Black had a choice of whether to accept employment with an NASD member firm and could have chosen a non-member brokerage firm if he objected to the arbitration procedures concerning customer disputes; as for the disciplinary sanctions to be imposed had Black refused tosubmit to arbitration, such sanctions are not mandatory but are simply possible recourse that may be taken by NASD. The Resolution of the Board of Governors states:

"It may be deemed conduct inconsistent with just and equitable principles of trade and a violation of Article III, Section 1 of the Rules of Fair Practice for a member or a person associated with a member to fail to submit a dispute for arbitration under the Code of Arbitration Procedure as required by that Code, ..." (Emphasis added)

At the same time he filed the agreement to arbitrate, Black also filed his answer to McNeal's claim. He did not make any objection to the arbitration or make any demand for jury trial. Black and his attorney participated in the arbitration hearings and never made any objection to arbitration. At the conclusion of the hearings Black's counsel stated affirmatively that all of his evidence had been presented and that he had had an equal opportunity to be heard. No demand for jury trial or objection to the arbitration process was made by Black until a month and a half after McNeal had moved to have the arbitration award confirmed.

We believe that by his participation in the arbitration without making any protest or demand for jury trial Black waived any right to object to the award later on these grounds. Pursuant to G.S. 1-567.3(b) of the Uniform Arbitration Act, rather than submitting to arbitration, Black could have brought an action in superior court to have the arbitration proceeding stayed and to have a determination of the issues of the demand for jury trial and the constitutionality of NASD's arbitration proceedings. In the alternative, under G.S. 1-567.13(a)(5), Black could have moved to vacate the award once it was entered. However, in order to make such a motion, he must have raised an objection to the arbitration proceeding at the time of the hearing. This he failed to do.

A party may waive a constitutional as well as a statutory benefit by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it. Development Co., Inc. v. Phillips, 278 N.C. 69, 76, 178 S.E.2d 813, 817 (1971); Cotton Mills v. Local 578, 251 N.C. 218, 228, 111 S.E.2d 457, 463 (1959), cert. denied, 362 U.S. 941, 80 S. Ct. 806, 4 L. Ed. 2d 770 (1960); 3 Strong's N.C.Index 3d Constitutional Law § 4.2 (1976). In Thomas v. Howard, 51 N.C.App. 350, 276 S.E.2d 743 (1981), the court held that the defendant waived his right to complain about the partiality of one of the arbitrators by failing to challenge the selection of the arbitrator until defendant made a motion to vacate the award. The evidence showed that defendant knew of the extent and nature of the relationship between the arbitrator and plaintiff at the time he entered into the agreement to arbitrate.

"The purpose of arbitration is to reach a final settlement of disputed matters without litigation, and it is well established that the parties, who have agreed to abide by the decision of a panel of arbitrators, will not generally be heard to attack the regularity or fairness of an award."

Thomas v. Howard, supra, at 352, 276 S.E.2d at 745. Fashion Exhibitors v. Gunter, 41 N.C.App. 407, 255 S.E.2d 414 (1979).

If Black had prevailed at the arbitration hearing, it is clear that he would not be challenging the procedure at this time. He cannot be allowed to participate in arbitration, raising no objections, and then refuse to be bound by an adverse award. This type of conduct would serve to defeat the purpose of arbitration.

We hold that Black's consent to submission of the matter to arbitration and his participation in the arbitration hearing, without making any objection, demand for jury trial or motion to stay the proceedings, resulted in a waiver of the right to subsequently challenge the arbitration process. Thomas v. Howard, supra; Fashion Exhibitors v. Gunter, supra; Annot., 33 A.L.R. 3d 1242 (1970). Black failed to assert his objections in a timely manner and also, by his active participation in the arbitration hearing, indicated conduct inconsistent with a purpose to insist upon a jury trial. Development Co., Inc. v. Phillips, supra.

We have carefully considered Black's other assignments of error and find them to be without merit.

For the foregoing reasons, we hold that the trial court properly denied Black's motions and confirmed the award of the arbitrators.

Affirmed.

HEDRICK and WHICHARD, JJ., concur.