Goldstein v. American Steel Span, Inc.
Goldstein v. American Steel Span, Inc.
Opinion of the Court
On 19 June 2004, Frank M. Goldstein (plaintiff) brought an action against American Steel Span, Inc., a North Dakota corporation
On or about 16 June 2003, the parties formed a contract under which plaintiff would purchase two buildings from defendant for the price of $33,840.00. The buildings were to be shipped unassem-bled to plaintiff, where they would be assembled by an independent contractor. Plaintiff claims to have modified the original contract in July, 2003 by cancelling his order for the second building. Though plaintiff states in his brief that defendant “did not object to the cancellation ...” defendant denies that the order was cancelled.
The contract to which the parties agreed included a page headed “TERMS AND CONDITIONS,” clause ten of which is titled “ARBITRATION.” Clause ten states, “All claims, disputes, and other matters in question arising out of or relating to this Agreement of Sale, or breach hereof, shall be submitted to binding arbitration in the City of Fargo, North Dakota.” There appear to be fourteen clauses on the page, and defendant signed the page at the top. The entire contract consists of only two pages.
In an order filed 11 August 2005, the trial court denied defendant’s 15 April 2005 motion to stay the proceedings pending arbitration. Defendant now assigns error to that denial, contending that the
The dispositive issue before this Court is whether the arbitration clause in the parties’ contract is enforceable. Because the trial court’s decision regarding this issue is a judicially determined conclusion of law, our standard on review is de novo. Sloan Fin. Grp., Inc. v. Beckett, 159 N.C. App. 470, 477-78, 583 S.E.2d 325, 330 (2003). “As a general matter, public policy favors arbitration. . . . [W]hether a dispute is subject to arbitration is a matter of contract law. Parties to an arbitration must specify clearly the scope and terms of their agreement to arbitrate.” Id: (citations omitted). At first blush, it appears that the parties’ agreement to arbitrate fails to clearly specify its scope and terms. Indeed, the trial court found and concluded that “the terms of the arbitration clause are too indefinite and left open for future determination to show a meeting of the minds with regard to the purported agreement to arbitrate.” As the North Carolina Business Court recently observed, however, “While the arbitration clause does not provide any details on the arbitrator or procedures for arbitration, these omissions are insufficient to strike the arbitration clause.” Polo Ralph Lauren Corp. v. Gulf Ins. Co., 2001 NCBC 3, 12, 00 CVS 5440 (2001).
Plaintiff also argues, and the trial court found and concluded, “that the designation of Fargo, North Dakota as the forum for arbitration is unreasonable under the circumstances and that enforcement of the forum designation would contravene a strong public policy of North Carolina, and would impose grave inconvenience and unfairness upon Plaintiff.” It is uncontested that the FAA applies to this case. Because the FAA preempts North Carolina law through the Supremacy Clause of the United States Constitution, thus rendering the forum designation enforceable, we hold that Fargo, North Dakota, as agreed upon in the parties’ contract, is the appropriate locale for arbitration.
Plaintiff concedes that the FAA applies to this case, arguing primarily that the contract itself is unenforceable. However, plaintiff also argues that the forum selection clause contravenes North Carolina law and public policy. Plaintiff cites our General Statutes for the proposition that “any provision in a contract entered into in North Carolina that requires . . . the arbitration of any dispute that arises from the contract to be instituted or heard in another state is against public policy and is void and unenforceable.” N.C. Gen. Stat. § 22B-3 (2003). As plaintiff acknowledges, however, “the North Carolina statute cannot supercede the Federal Arbitration Act which provides that forum selection clauses are presumed valid.” See U.S. Const. Art. VI.
Plaintiff cites to several federal cases for the proposition that “a trial court has authority to strike an ‘unreasonable’ forum selection clause in an otherwise valid arbitration agreement.” See, e.g., The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 32 L. Ed. 2d 513 (1972); Allen v. Lloyd’s of London, 94 F.3d 923 (4th Cir. 1996). However, these cases “addressed a contractual provision which chose a forum for litigation, not for arbitration.” Spring Hope Rockwool, Inc. v. Industrial Clean Air, Inc., 504 F. Supp. 1385, 1389 (E.D.N.C. 1981) (specifically discussing the United States Supreme Court’s decision in
The arbitration clause is governed by the UAA and FAA. Using the “gap-fillers” provided in that statutory framework, the arbitration clause is sufficiently definite to be enforceable under the normal rules of contract law. Furthermore, the FAA preempts North Carolina’s statute and public policy regarding forum selection; as such, the forum designated by the contract, North Dakota, is the appropriate forum. Accordingly, we reverse the trial court and remand with instructions to stay the proceedings pending arbitration of the dispute.
Reversed and remanded.
. Plaintiff also sued Steven S. Shepherd, individually and d/b/a Shepherd Steel Building Service, who was not served and did not participate further in the proceedings.
. The Court notes that the Business Court represents merely persuasive authority. However, we are mindful that the Business Court exists solely to hear complex business cases, and as such are respectful of its opinions.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion. In light of violations of the Rules of Appellate Procedure in this case, I feel compelled to vote to dismiss this appeal.
Rule 10(c)(1) of the Rules of Appellate Procedure requires, in part,
[e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.
Defendant’s second assignment of error reads as follows: “[t]he court’s denial of [Defendant's motion to stay the proceeding and compel arbitration pursuant to the contract on the ground that said arbitration clause was a part of the contract and reasonable under all circumstance.” In its brief, Defendant attempts to bring before this Court the following arguments: (1) “Congress has pre-empted matters ‘involving commerce’ where there is a written contract to arbitrate”; and (2) “State common law on ‘forum non conveniens’ and N.C.G.S. 22B-3 do not apply to written arbitration agreements involving interstate commerce[.]” Defendant’s assignments of error are insufficient to bring these arguments of Defendant properly before this Court. This Court has long held that “[t]he scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant’s brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.” Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994). “[B]road, vague, and unspecific” assignments of error do not comply with the Rules of Appellate Procedure. In re Appeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002). Nowhere in its assignments of error does Defendant reference preemption or the Federal Arbitration Act. By reaching the merits of this appeal, I believe the majority opinion has created an appeal for Defendant by determining issues not properly before us in contravention of our Supreme Court’s mandate in Viar v. N.C. Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh’g denied, 359 N.C. 643, 617 S.E.2d 662 (2005) (“It is not the role of the appellate courts, however, to create an appeal for an appellant.”).
In addition to the above violations of Rule 10, Defendant also failed to include a statement of the grounds for appellate review in violation of N.C.R. App. P. 28(b)(4) and failed to include “a concise statement of the applicable standard(s) of review for each question presented” in violation of N.C.R. App. P. 28(b)(6).
For the reasons stated above, I respectfully dissent.
Reference
- Full Case Name
- FRANK M. GOLDSTEIN, Plaintiff v. AMERICAN STEEL SPAN, INC., and STEVEN S. SHEPHERD Individually and D/B/A Shepherd Steel Building Service, Defendants
- Cited By
- 6 cases
- Status
- Published