Bledsole v. Johnson

GREENE, Judge,

dissenting.

All parties to a case that is to be arbitrated pursuant to the Rules for Court-Ordered Arbitration (the Rules) are required to be present at the arbitration hearing or to have a representative present who is authorized to make binding decisions on their behalf. N.C. Arb. R. 3(p). If a party or its authorized representative does not appear at the hearing and the arbitrator enters an award against that party, that party may within 30 days of the filing of the award move the trial court to order a rehearing on the grounds that he “failed to appear for reasons beyond [his] control.” N.C. Arb. R. 3(j), 5(a).

In this case, the arbitration hearing was conducted on 31 August 2000. Defendant was not present for the hearing, although his attorney was present. At the hearing, the issue of whether defendant’s attorney had the authority to make binding decisions on behalf of his client was never raised. After the hearing, on 1 September 2000, an “Award and Judgment,” which noted that “[a] 11 parties were present in person or through an attorney,” was filed. Subsequently, on 11 September 2000, defendant moved for a trial de novo pursuant to Rule 5(a). On 24 October 2000, plaintiff filed her motion for sanctions requesting defendant’s trial de novo request be denied because he did not appear at the arbitration hearing or have anyone present “authorized to make binding decisions on his behalf.” The trial court allowed plaintiff’s motion on the grounds that defendant was neither present for the arbitration hearing nor had a representative there with the authority to make binding decisions on his behalf.

Because plaintiff did not raise the issue of whether defendant’s attorney had the requisite Rule 3(p) authority until after expiration of the time for defendant to move the trial court for an arbitration rehearing, she is barred from raising the issue. To hold otherwise would allow her to simply wait until it is too late for defendant to attempt to correct the problem that is the basis of her motion, and this would be inconsistent with any reasonable construction of the Rules. In other words, unless a party makes a timely Rule 3(p) objection, it cannot seek to deny another party the right to request a Rule 5(a) trial de novo on the grounds that party has failed to comply with Rule 3(p). See Mohamad v. Simmons, 139 N.C. App. 610, 611, 534 S.E.2d 616, 618 (2000) (the plaintiff “objected to the failure of the individual defendants to appear [at the arbitration hearing], but proceeded with the hearing without waiving or withdrawing the objection”). A timely objection is one entered either at the hearing or at the time the award is filed. As plaintiff never entered a Rule 3(p) objection, the failure of the record to show defendant’s attorney had Rule 3(p) authority cannot be the basis for denying defendant a trial de novo, awarding plaintiff attorney’s fees, or awarding costs. Accordingly, I would reverse and remand for an entry of an order granting defendant’s request for a trial de novo.