Bilfinger Inc. v. Cargill

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-320

Filed 2 April 2025

Mecklenburg County, No. 23 CVS 9269

BILFINGER INC., Plaintiff,

v.

CARGILL, INCORPORATED, Defendant.

Appeal by Defendant from Order entered 29 November 2023 by Judge George

C. Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 23

October 2024.

Bell, Davis & Pitt, P.A., by Joshua B. Durham and Edward B. Davis; Eversheds

Sutherland (US) LLP, by Lee C. Davis, pro hac vice, and Tracey K. Ledbetter,

pro hac vice, for plaintiff-appellee.

Robinson, Bradshaw & Hinson, P.A., by Edward F. Hennessey, IV; Faegre

Drinker Biddle & Reath LLP, by Aaron Van Oort, pro hac vice, for defendant-

appellant.

HAMPSON, Judge.

Factual and Procedural Background

Cargill, Incorporated (Defendant) appeals from an Order denying its Motion to

Compel Arbitration and granting Bilfinger Inc.’s (Plaintiff) Motions to Stay

Arbitration and to Supplement the Record entered on 29 November 2023. The Record

before us tends to reflect the following:

Defendant owns facilities across the country, including a facility located in

Charlotte, North Carolina. At the Charlotte facility, Defendant refines, packages,

BILFINGER INC. V. CARGILL, INC.

Opinion of the Court

and ships edible vegetable oil and shortening products. Plaintiff is an international

contractor and construction company. On or about 26 March 2021, Plaintiff

contracted with Defendant to provide mechanical and piping services on Defendant’s

projects throughout the country. The parties executed a Master Services Agreement

(MSA), the general contract framework for all projects entered into between the

parties. For individual projects over $250,000, the parties agreed to supplement the

MSA with project-specific contracts. The MSA provides that if a project-specific

contract addresses a topic addressed by the MSA, the MSA will render those terms

null and void:

7(d). . . . Notwithstanding any terms in the [project-specific

contract] documents, to the extent that a topic is addressed or a

remedy is provided for in this Agreement, corresponding terms or

remedies set forth in the [project-specific contract] documents are

null and void and of no [e]ffect as to the rights or obligations of

either [Defendant] or [Plaintiff]. To the extent that a topic is not

addressed or a remedy is not provided for in this Agreement, then

the terms of the [project-specific contract] shall control for that

specific topic or remedy.

Plaintiff began a project at Defendant’s Charlotte facility to construct two new

hydrogenation towers and expand its processing operations. The contract price for

the project exceeded $250,000, so the parties entered into a project-specific agreement

to supplement the MSA; the project-specific agreement expressly incorporates by

reference another document, the “General Conditions” of the agreement (collectively,

Construction Contract). Both the MSA and the Construction Contract contain

sections titled “Dispute Resolution”, which discuss the procedures to be undertaken

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in the event a dispute arises between the parties. Under MSA Section 26, if a dispute

arises, the parties must first attempt to resolve it by reporting it in writing to senior

management representatives. If senior management does not resolve the dispute

within twenty days of receiving notice, then the parties may agree to mediate the

dispute, but “regardless whether mediation has occurred, either party may pursue

court action”:

26(b). After [twenty days] and upon mutual agreement of the

parties, either party may submit the Dispute to a third party

mediator recognized in the field of alternative dispute resolution,

and acceptable to the other party. The mediation will be non-

binding, and occur at a time and place acceptable to both parties

with each party bearing its respective costs. After [twenty days],

regardless whether mediation has occurred, either party may

pursue court action pursuant to the requirements and limitations

set forth in this Agreement. Notwithstanding any other provision

of this Agreement, each Party is entitled to immediate access to

the courts to: (i) toll any statute of limitation or (ii) seek

appropriate injunctive relief or other equitable remedy if, in such

party’s sole discretion, such action is deemed necessary to avoid

irreparable damage or preserve the status quo.

By contrast, under Article 16 of the Construction Contract, “[a]ll claims arising out of

the Contract Documents shall be subject to arbitration[.]”

Indeed, disputes eventually arose between the parties. The parties referred

the disputes to senior management, as contemplated by the MSA. Senior

management did not resolve the disputes within twenty days. In accordance with

MSA Section 26, Plaintiff brought an action against Defendant in Mecklenburg

County Superior Court on 26 May 2023, alleging a claim for Breach of Contract and

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seeking foreclosure of a mechanic’s lien. On 24 July 2023, Defendant filed a Demand

for Arbitration with the American Arbitration Association. On 26 July 2023,

Defendant filed Motions to Compel Arbitration and Stay Judicial Proceedings, relying

on the arbitration clause contained in Article 16 of the Construction Contract.

Plaintiff filed a Cross-Motion to Stay Arbitration on 5 September 2023. The Motions

were heard before the trial court on 12 September 2023. The same day, Plaintiff filed

a Motion to Supplement the Record with an additional affidavit (Second Affidavit),

which it had served on Defendant the night prior.

On 29 November 2023, the trial court denied Defendant’s Motion to Compel

Arbitration and granted Plaintiff’s Motion to Supplement the Record and Motion to

Stay Arbitration. On 12 December 2023, Defendant timely filed Notice of Appeal.

Appellate Jurisdiction

“[A]n appeal from the trial court’s denial of a motion to compel arbitration is

an interlocutory order.” U.S. Trust Co., N.A. v. Stanford Grp. Co., 199 N.C. App. 287,

289, 681 S.E.2d 512, 513 (2009) (citation omitted). Generally, “a party has ‘no right

of immediate appeal from interlocutory orders and judgments.’ ” Bartels v. Franklin

Operations, LLC, 288 N.C. App. 193, 195, 885 S.E.2d 357, 359 (2023) (quoting

Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990)).

However, “ ‘an order denying arbitration, although interlocutory, is immediately

appealable because it involves a substantial right which might be lost if appeal is

delayed.’ ” Brown v. Centex Homes, 171 N.C. App. 741, 743, 615 S.E.2d 86, 87 (2005)

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(quoting Prime S. Homes, Inc. v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825

(1991)); N.C. Gen. Stat. § 7A-27(b)(3)(a) (2023) (appeal lies of right directly to the

Court of Appeals from any interlocutory order or judgment of a superior court in a

civil action or proceeding which affects a substantial right); N.C. Gen. Stat. § 1-

569.28(a)(1) (2023) (appeal may be taken from an order denying a motion to compel

arbitration).

However, we have also held that where no arbitration agreement is found to

exist, the interlocutory appeal does not affect a substantial right and is subject to

dismissal.1 See JRM, Inc. v. HJH Companies, Inc., 287 N.C. App. 592, 598, 883

1 Our dissenting colleague—who authored JRM, Inc.—now takes issue with the approach that

case requires us to employ. Indeed, prior to JRM, Inc., we have also simply affirmed in other similar

instances. See, e.g., Register v. Wrightsville Health Holdings, LLC, 271 N.C. App. 257, 843 S.E.2d 464

(2020) (affirming trial court’s denial of motion to compel arbitration); Sciolino v. TD Waterhouse

Investor Servs., Inc., 149 N.C. App. 642, 562 S.E.2d 64 (2002) (same); Kennedy v. Branch Banking &

Trust Co., 165 N.C. App. 275, 600 S.E.2d 520 (2004) (unpublished) (same).

Under N.C. Gen. Stat. § 1-569.6(b) (2023), “[t]he court shall decide whether an agreement to

arbitrate exists or a controversy is subject to an agreement to arbitrate.” On the motion of a person

showing an agreement to arbitrate, the court shall order the parties to arbitrate unless it finds there

is no enforceable agreement to arbitrate. N.C. Gen. Stat. § 1-569.7(a)(2) (2023) (emphasis added).

Previously, our statute governing proceedings on a motion to compel or stay arbitration considered

whether the party opposing the motion to compel arbitration denied the existence of an agreement to

arbitrate. See N.C. Gen. Stat. § 1-567.3 (repealed 2004) (emphasis added).

Thus, the language surrounding whether an arbitration agreement “exists” when reviewing a

motion to compel or stay arbitration appears to be an artifact of caselaw applying old statutory

language. See e.g., Sciolino, 149 N.C. App. at 645, 562 S.E.2d at 66 (“When a party disputes the

existence of a valid arbitration agreement, the trial judge must determine whether an agreement to

arbitrate exists.” (citing N.C. Gen. Stat. § 1-567.3(a) (1999) (repealed 2004)); Slaughter v. Swicegood,

162 N.C. App. 457, 461, 591 S.E.2d 577, 580 (2004) (citing N.C. Gen. Stat. § 1-567.3 (2001) (repealed

2004)); Evangelistic Outreach Ctr. v. Gen. Steel Corp., 181 N.C. App. 723, 726, 640 S.E.2d 840, 843

(2007) (“If a party claims that a dispute is covered by an agreement to arbitrate but the adverse party

denies the existence of an arbitration agreement, the trial court shall determine whether an agreement

exists.” (quoting Slaughter, 162 N.C. App. at 461, 591 S.E.2d at 580)).

Where the existence of an arbitration agreement is solely at issue, such as in JRM, Inc., the

proper approach may be to treat the appeal as interlocutory and determine whether the appeal should

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S.E.2d 217, 221 (2023). Here, the trial court concluded there was no agreement to

arbitrate because any arbitration agreement was null and void. Thus, if a valid

agreement to arbitrate does not exist, Defendant has failed to show a substantial

right is affected and this Court lacks jurisdiction to review the trial court’s

interlocutory order denying Defendant’s motion to compel arbitration. See id.

Issues

The issues on appeal are whether the trial court: (I) abused its discretion by

admitting Plaintiff’s Second Affidavit; and (II) properly denied the Motion to Compel

Arbitration on the basis there was no agreement to arbitrate between the parties

because the MSA rendered the alleged arbitration clause null and void.

Analysis

I. Admission of Second Affidavit

As a threshold matter, Defendant contends the trial court erred by granting

Plaintiff’s Motion to Supplement the Record and admitting the Second Affidavit. This

Court reviews a trial court’s ruling on an untimely affidavit for abuse of discretion.

be dismissed or not based on a review of the merits. See 287 N.C. App. at 597-98, 883 S.E.2d at 220-

21. Where the enforceability of an existing arbitration agreement is at issue, however, the more

appropriate approach may be to accept the matter as involving a substantial right and decide the case

squarely on the merits. See Pressler v. Duke Univ., 199 N.C. App. 586, 685 S.E.2d 6 (2009). See also

Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 628-29, 129 S. Ct. 1896, 1900-01, 173 L.Ed.2d 832

(2009) (holding the underlying merits of an appeal from an order denying a stay pending arbitration

are irrelevant in determining whether an appellate court has jurisdiction over the appeal).

Nonetheless, where a panel of the Court of Appeals has decided the issue, albeit in a different

case, we are bound by that precedent. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).

As such, we faithfully apply JRM, Inc.’s rubric to this matter. Moreover, the effect of the mandate is

the same: in the absence of an agreement to arbitrate, the trial court’s order denying arbitration will

be upheld and the appeal dismissed as interlocutory.

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Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 184, 609 S.E.2d 456, 458-59

(2005).

Rule 6(d) of the North Carolina Rules of Civil Procedure generally requires

affidavits in support of a motion be served with the motion and—unless otherwise

provided—affidavits in opposition to a motion be served at least two days before the

hearing on the motion. N.C. Gen. Stat. § 1A-1, Rule 6(d) (2023). However, even “[i]f

the opposing affidavit is not served on the other parties at least two days before the

hearing on the motion, the court may continue the matter for a reasonable period to

allow the responding party to prepare a response, proceed with the matter without

considering the untimely served affidavit, or take such other action as the ends of

justice require.” Id.

Here, Plaintiff served the Second Affidavit on Defendant less than two days

before the hearing on the Motion to Compel Arbitration. Nonetheless, the trial court,

in its discretion, accepted the Second Affidavit as part of the Record. Specifically, the

trial court noted the Second Affidavit was submitted in response to an argument first

raised by Defendant in its memorandum opposing Plaintiff’s Motion to Stay

Arbitration.

In particular, the trial court relied on the Second Affidavit solely for

determining the purpose of the MSA’s preemption clause and to find—counter to

Defendant’s argument—the parties did not specifically negotiate any of the terms in

Article 16 of the Construction Contract:

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7. Section 7(d) of the MSA provides that “to the extent that a topic

is addressed or a remedy is provided for in this Agreement [the

MSA], corresponding terms or remedies set forth in the

[Construction Contract] are null and void and of no affect as to

the rights or obligations of either [Defendant] or [Plaintiff]” . . .

The purpose of this language was to spare the parties the effort

of reviewing the lengthy form contracts to determine each and

every way that some clause might cover the same topic already

addressed by and agreed to in the MSA. ([Second Affidavit], filed

on September 11, 2023 . . . at ¶¶ 3-5.)

....

10. The parties did not specifically negotiate any of the terms in

Article 16 of the general conditions of the [Construction Contract].

([Second Affidavit] at ¶¶ 4-5.)

There is no indication the trial court relied on the Second Affidavit in

specifically concluding MSA Section 7(d) rendered Article 16 of the Construction

Contract null and void. To the contrary, the trial court concluded the MSA rendered

the Construction Contract’s Dispute Resolution provisions null and void by its own

terms, reasoning that because MSA Section 26 and Article 16 of the Construction

Contract cover the “exact same” topic, the terms contained in the Construction

Contract are null and void.

Thus, the trial court’s consideration of the late-filed affidavit was solely

supplemental in purpose and used to rebut an argument newly raised by Defendant

in Defendant’s own opposition to Plaintiff’s motion. See Rolling Fashion Mart, Inc. v.

Mainor, 80 N.C. App. 213, 216, 341 S.E.2d 61, 63 (1986) (no abuse of discretion in

admitting untimely affidavit where “affidavit was clearly supplemental in that it did

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no more than explain the transactions referred to in the earlier affidavits filed by the

parties and provide copies of the documents involved in those transactions.”).

Therefore, Defendant has not demonstrated any abuse of discretion by the trial court

in admitting and considering the Second Affidavit. See Lane, 169 N.C. App. at 184-

85, 609 S.E.2d at 458-59 (finding trial court did not err in allowing affidavit to be

admitted after motion was filed where “[p]laintiffs have failed to show abuse of

discretion in the trial court’s decision to deny plaintiffs’ request to strike [the]

affidavit.”). Consequently, the trial court did not commit reversible error in allowing

Plaintiff to supplement the Record with the Second Affidavit.

II. Motion to Compel Arbitration

Defendant contends the trial court erred in concluding there was no valid

agreement to arbitrate. Under N.C. Gen. Stat. § 1-569.7 (2023),

(a) On motion of a person showing an agreement to arbitrate and

alleging another person’s refusal to arbitrate pursuant to the

agreement:

....

(2) If the refusing party opposes the motion, the court shall

proceed summarily to decide the issue and order the parties

to arbitrate unless it finds that there is no enforceable

agreement to arbitrate.

This Court has elaborated “the trial court must perform a two-step analysis

requiring the trial court to ascertain both (1) whether the parties had a valid

agreement to arbitrate, and also (2) whether the specific dispute falls within the

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substantive scope of that agreement.” U.S. Trust Co., N.A., 199 N.C. App. at 290, 681

S.E.2d at 514 (citation and quotation marks omitted). “ ‘[T]he trial court’s findings

regarding the existence of an arbitration agreement are conclusive on appeal where

supported by competent evidence, even where the evidence might have supported

findings to the contrary.’ ” Ellis-Don Constr., Inc. v. HNTB Corp., 169 N.C. App. 630,

633-34, 610 S.E.2d 293, 296 (2005) (citations omitted). We review the trial court’s

conclusions of law de novo. Hager v. Smithfield E. Health Holdings, LLC, 264 N.C.

App. 350, 354-55, 826 S.E.2d 567, 571 (2019) (citation omitted).

The parties do not contest that “to the extent that a topic is addressed or a

remedy is provided for” in the MSA, it renders corresponding contents in the

Construction Contract null and void. The parties disagree, however, as to what the

language “to the extent” contemplates in this context. Defendant argues MSA Section

26 “did not prescribe terms for arbitration” and thus “addressed dispute resolution

only to the extent it involved senior management, mediation by mutual agreement,

and access to the courts for the limited purpose of tolling the statute of limitations

and to avoid irreparable damage or preserve the status quo[.]” In other words,

Defendant contends, because the MSA does not expressly say anything about

arbitration, it does not “address” arbitration and thus does not render Article 16 of

the Construction Contract null and void. Consequently, according to Defendant,

Article 16 of the Construction Contract requires the parties to arbitrate their dispute.

The MSA provides

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Opinion of the Court

[n]otwithstanding any terms in the [Construction Contract]

documents, to the extent that a topic is addressed or a remedy is

provided for in this Agreement, corresponding terms or remedies

set forth in the [Construction Contract] documents are null and

void and of no [e]ffect as to the rights or obligations of either

[Defendant] or [Plaintiff].

The MSA also provides “[t]o the extent that a topic is not addressed or a remedy is

not provided for in [the MSA],” then the terms of the Construction Contract shall

control on that specific topic or remedy (emphasis added). Both the MSA and the

Construction Contract contain sections with the heading “Dispute Resolution”.

Within those sections, each discusses the procedures for resolving a dispute, with the

MSA allowing for court action and the Construction Contract requiring all disputes

to be arbitrated.

In denying Defendant’s Motion to Compel Arbitration, the trial court

concluded:

5. Section 7(d) of the MSA provides that “to the extent that a topic

is addressed or a remedy is provided for in this Agreement [the

MSA], corresponding terms or remedies set forth in the

[Construction Contract] documents are null and void and of no

[e]ffect as to the rights or obligations of either [Defendant] or

[Plaintiff].” (Emphasis added). Thus, the parties agreed in

advance that if the MSA and the [Construction Contract] cover

the same topic, the provisions of the MSA apply and the

provisions of the [Construction Contract] are “null and void and

of no [e]ffect.”

6. Because MSA § 26 and [the Construction Contract] § 16 cover

the exact same “topic” of dispute resolution, the terms of the

[Construction Contract] on the topic of dispute resolution are

“null and void” under the MSA.

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7. The dispute resolution section of the [Construction Contract]

General Conditions, including the delegation clause, therefore

never governed the rights or obligations of [Plaintiff] or

[Defendant] (on the topic of Dispute Resolution), the parties never

agreed to arbitration as a matter of the plain language of the

contracts, and the parties never agreed that the arbitrator would

decide arbitrability.

(emphasis in original). In support of these conclusions, the trial court made specific

findings, including the following:

7. Section 7(d) of the MSA provides that “to the extent that a topic

is addressed or a remedy is provided for in this Agreement [the

MSA], corresponding terms or remedies set forth in the

[Construction Contract] are null and void and of no [e]ffect as to

the rights or obligations of either [Defendant] or [Plaintiff]” . . . .

8. The MSA contains a section on the topic of (and is specifically

titled) “Dispute Resolution,” which provides that disputes will be

resolved first by negotiation among senior management

representatives of the parties; thereafter, “either party may

pursue court action.” (MSA § 26.)

9. The general conditions to the [Construction Contract] also

contain a section on the topic of (and specifically titled) “Dispute

Resolution” which states that the parties will resolve disputes

through arbitration ([Construction Contract], General Conditions

§ 16.)

(emphasis in original). These findings accurately recite the relevant provisions of

each agreement and are, therefore, supported by the evidence.

Defendant argues “having the same heading or touching the same topic is not

enough to prompt preemption under Section 7(d).” However, as the trial court found,

not only do the agreements share headings on the same topic, but the substantive

provisions under each heading also address what the parties are to do in the event a

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dispute arises between them.

Defendant further contends the parties agreed the MSA would preempt

overlapping “contradictory” terms in the Construction Contract and only to the extent

the MSA prescribed those terms. Defendant urges us to read the MSA and the

Construction Contract “harmoniously,” such that the terms of the agreements do not

overlap, giving effect to the provisions of both agreements. Defendant argues the

agreements should be interpreted together, such that any dispute between the parties

must first be submitted to senior management in accordance with MSA Section 26,

then either party may seek to resolve the dispute through mediation—also in

accordance with MSA Section 26; absent mutual agreement to mediate the dispute,

it shall be subject to arbitration in accordance with Article 16 of the Construction

Contract—and a party may only immediately pursue court action in order to toll the

statutes of limitations or seek injunctive or equitable relief pursuant to MSA Section

26.

It is true, this Court should interpret contracts “in a manner that gives effect

to all of its provisions, if the court is reasonably able to do so.” Johnston Cty. v. R.N.

Rouse & Co., Inc., 331 N.C. 88, 94, 414 S.E.2d 30, 34 (1992) (citation omitted).

However, we also must interpret a contract by its plain language when possible. See

Internet East, Inc. v. Duro Communications, Inc., 146 N.C. App. 401, 405, 553 S.E.2d

84, 87 (2001) (“Where the terms of a contractual agreement are clear and

unambiguous, the courts cannot rewrite the plain meaning of the contract.”). See also

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Morrell v. Hardin Creek, Inc., 371 N.C. 672, 686, 821 S.E.2d 360, 369 (2018) (the

Court must “enforce the parties’ intent as evidenced by the clear and explicit language

of the [contract]”).

Here, the language of the MSA states: to the extent a topic is addressed or a

remedy is provided for in the MSA, corresponding terms or remedies set forth in the

Construction Contract are null and void and of no effect as to the rights or obligations

of either Plaintiff or Defendant. The trial court concluded the same:

8. It is not necessary for the Court to determine whether the MSA

and [the Construction Contract] dispute resolution provisions

conflict because the MSA explicitly states that where a “topic” or

“remedy” is addressed in the MSA, then a corresponding topic or

remedy in the [Construction Contract] is null and void.

Indeed, MSA Section 7(d) contemplates there may be overlap of topics or remedies in

subsequent project-specific agreements such as the Construction Contract—and

provides that in such instances, the terms contained in the MSA should control.

Moreover, we may not “creatively interpret the parties’ actual . . . agreement in the

manner urged . . . and must instead enforce the parties’ intent as evidenced by the

clear and explicit language of the” MSA—that the MSA renders any corresponding

terms in the Construction Contract null and void. Morrell, 371 N.C. at 686, 821

S.E.2d at 369.

Further, the cases cited by Defendant for its argument a contract should be

construed in a manner that gives full effect to all provisions are distinguishable from

the facts before us. See R.N. Rouse & Co., Inc., 331 N.C. at 90, 414 S.E.2d at 32

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(contract stated “in the event of any conflicting statements or requirements” between

two agreements, the subsequent agreement would control (emphasis added)

(quotation marks omitted)); Internet East, Inc., 146 N.C. App. at 405-06, 553 S.E.2d

at 87 (agreement compelled arbitration “[u]nless the parties shall agree otherwise”);

In re Hall, 210 N.C. App. 409, 415, 708 S.E.2d 174, 178 (2011) (construing two

agreements in a harmonious manner where neither agreement provided for control

over the other); Lowder, Inc. v. Highway Comm., 26 N.C. App. 622, 642, 217 S.E.2d

682, 695 (1975) (contract contained “no indication” one clause was to “override” the

other), cert. denied, 288 N.C. 393, 218 S.E.2d 467 (1975). Indeed, none of these cases

concern an agreement which purported to have a voiding effect on corresponding

terms and remedies in other agreements.

The dissent places heavy emphasis on the language in MSA Section 26(b)

stating “Notwithstanding any other provision of [the MSA], each Party is entitled to

immediate access to the courts to: (i) toll any statute of limitation or (ii) seek

appropriate injunctive relief or other equitable remedy if, in such party’s sole

discretion, such action is deemed necessary to avoid irreparable damage or preserve

the status quo.”

Contrary to the dissent’s assertion, our interpretation of the MSA and

Construction Contract gives consistent effect to this provision. Section 26(a) requires

the parties to first refer “[a]ny controversy or claim” to senior management by written

request. Section 26(b) allows the parties—twenty days after referring the dispute to

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senior management—to either mediate the dispute or pursue court action “pursuant

to the requirements and limitations set forth in [the MSA].” Thus, read in the full

context of the agreement, Section 26(b) allows the parties to immediately access the

courts to toll any statute of limitation or seek injunctive or equitable relief without

first submitting the dispute to management or pursuing mediation as prescribed in

Section 26(a) and (b) if such action is “deemed necessary to avoid irreparable damage

or preserve the status quo.” (emphasis added). In other words, the parties may

immediately seek court action to preserve their rights while undertaking the dispute

resolution process mandated by the MSA. Otherwise, the parties must follow the

requirements and limitations set forth in the MSA and the remainder of Section 26—

which Plaintiff has done here.

Here, MSA Section 7(d) expressly provides that to the extent the MSA

addresses a topic, it renders corresponding terms or remedies set forth in the

Construction Contract null and void. Thus, the Record supports the trial court’s

Findings that the MSA and the Construction Contract both contain sections titled

“Dispute Resolution” and that MSA Section 26 provides specific terms for dispute

resolution—expressly allowing for resolution in court—and Article 16 of the

Construction Contract provides its own dispute resolution process—arbitration.

These Findings, in turn, support the trial court’s Conclusion that because MSA

Section 26 and Article 16 of the Construction Contract “cover the exact same ‘topic’ ”,

Article 16 of the Construction Contract is null and void. Consequently, consistent

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with JRM, Inc., this appeal is interlocutory and does not affect a substantial right,

subjecting it to dismissal. See 287 N.C. App. at 598, 883 S.E.2d at 221.

Conclusion

Accordingly, for the foregoing reasons, Defendant’s appeal from the trial

court’s Order Denying its Motion to Compel Arbitration is dismissed.

DISMISSED.

Judge FLOOD concurs.

Judge TYSON dissents by separate opinion.

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No. COA24-320 – Bilfinger Inc. v. Cargill, Inc.

TYSON, Judge, dissenting.

The majority’s opinion wrongfully dismisses Defendant’s immediately-

available appeal of the trial court’s denial of his motion to compel arbitration. The

two clauses and remedies in the Master Service Agreement (“MSA”) and the later and

more specific Construction Contract are consistent and harmonious. The content and

exclusions of the specific provisions read together reflect the intent and agreement of

the parties. The paragraph headers are merely surplus and non-binding.

The MSA does not specifically exclude arbitration as an additional option and

remedy to senior managements’ meeting, mediation, and does not prevent the parties

from resorting to the courts in the limited instances stated. The MSA provides:

either party may pursue court action pursuant to the

requirements and limitations set forth in this Agreement.

Notwithstanding any other provision of this Agreement,

each Party is entitled to immediate access to the courts to:

(i) toll any statute of limitation or (ii) seek appropriate

injunctive relief or other equitable remedy if, in such party’s

sole discretion, such action is deemed necessary to avoid

irreparable damage or preserve the status quo. (emphasis

supplied).

Resorting to the courts is expressly limited by and to the enumerated purposes stated

in this “Notwithstanding” and overriding provision.

It makes perfect sense for the parties to expressly agree to a later and more

specific individualized Construction Contract, in addition to the MSA, for capital

projects over $250,000, as opposed to smaller or nickel and dime daily maintenance

between the parties. An arbitration option is needed as a supplement to the informal

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TYSON, J., dissenting

discussion between management and non-binding mediation for a prompt, final and

binding decision. Much more is at stake for both parties on large projects. The delays

inherent during litigation, while in the midst of large-scale projects, are intolerable

for both parties.

This is a multi-million or multi-hundred-million dollar project. The project-

specific Construction Contract is later in time, was specifically agreed to, and is in

addition to, amends, and extends the MSA. The addition of arbitration as another

procedure and remedy to resolve disputes does not usurp or conflict with any “topic”

or provisions of the MSA. A more specific and later-in-time agreement takes priority

and controls over an earlier and more general agreement. See Wood-Hopkins

Contracting Co. v. N.C. State Ports Auth., 284 N.C. 732, 738, 202 S.E.2d 473, 476

(1974) (“[W]hen general terms and specific statements are included in the same

contract and there is a conflict, the general terms should give way to the specifics.”).

The presence of arbitration as a remedy to quickly resolve disputes in the project-

specific Construction Contract, is binding and is entirely consistent with the parties’

expressed intent in the later agreement.

The Federal Arbitration Act “was enacted in 1920 in response to widespread

judicial hostility to arbitration agreements.” AT&T Mobility LLC v. Concepcion, 563

U.S. 333, 339, 179 L. Ed. 2d 742, 750 (2011) (citing Hall Street Associates, L.L.C. v.

Mattel, Inc., 552 U.S. 576, 581, 170 L.Ed.2d 254 (2008)).

The Federal Arbitration Act provides:

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A written provision in any maritime transaction or a

contract evidencing a transaction involving commerce to

settle by arbitration a controversy thereafter arising out of

such contract or transaction . . . shall be valid, irrevocable,

and enforceable, save upon such grounds as exist at law or

in equity for the revocation of any contract.

9 U.S.C. § 2 (2024) (emphasis supplied).

The Supreme Court of the United States “described this provision as reflecting

both a ‘liberal federal policy favoring arbitration,’ and the ‘fundamental principle that

arbitration is a matter of contract.”’ Id. (internal citations omitted). Justice Scalia,

writing for the majority of the Court held “courts must place arbitration agreements

on an equal footing with other contracts, and enforce them according to their terms.

Id. (internal citations omitted).

The trial court erred in denying Defendant’s motion to compel arbitration and

the majority’s opinion errs in dismissing Defendant’s timely appeal. I respectfully

dissent.

I. Background

An express agreement between the parties to arbitrate disputes, and the denial

of that mechanism to resolve those disputes, triggers immediate review. To cease

progress mid-point and languish in litigation purgatory will kill a large construction

project quicker than anything else. Disputes over specific approvals, permits, time,

materials, finance, completion, quality and delivery schedules demand prompt and

final resolution. That is the reason Congress and our General Assembly and multiple

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TYSON, J., dissenting

binding precedents provide enforcement and allow for interlocutory review of the

denial of an expressly-agreed-to alternative dispute resolution.

The later and more specific Construction Contract meets all the elements of a

valid express contract and should be enforced according to its terms. Neither

Plaintiff, the trial court, nor the majority’s opinion dispute the validity of the later

Construction Contract. In fact, it is that very contract Plaintiff seeks to enforce in an

unauthorized forum after Plaintiff had bargained for and agreed to arbitration to

timely resolve disputes under that very agreement!

Plaintiff brought a purported action in Mecklenburg County Superior Court on

26 May 2023 against Defendant alleging a claim for Breach of Contract and seeking

foreclosure of a mechanic’s lien. Neither of Plaintiff’s claims in the trial court seeks

to “toll any statute of limitation or (ii) seek appropriate injunctive relief” under the

MSA.

Defendant timely filed a Demand for Arbitration with the American

Arbitration Association on 24 July 2023. Defendant also filed Motions to Compel

Arbitration and to Stay Judicial Proceedings on 26 July 2023, relying upon the

arbitration clause contained in Article 16 of the Construction Contract. Plaintiff filed

a Cross-Motion to Stay Arbitration on 1 September 2023. The Motions were heard

before the trial court on 12 September 2023. The trial court denied Defendant’s

Motion to Compel Arbitration and granted Plaintiff’s motion to Stay Arbitration on

28 November 2023. On 12 December 2023, Defendant timely filed Notice of Appeal.

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TYSON, J., dissenting

II. Standard of Review

Federal and North Carolina statutes and precedents strongly encourage

arbitration as an agreed-upon and alternative means for parties to resolve their

disputes. Courts have held to enforce this principle, it is “well established that an

order denying a motion to compel arbitration is immediately appealable.” Cornelius

v. Lipscomb, 224 N.C. App. 14, 16, 734 S.E.2d 870, 871 (2012) (citing Edwards v.

Taylor, 182 N.C. App. 722, 724, 643 S.E.2d 51, 53 (2007)); U.S. Trust Co., N.A. v.

Stanford Grp. Co., 199 N.C. App. 287, 289, 681 S.E.2d 512, 513 (2009) (citation

omitted) (“[A]n appeal from the trial court’s denial of a motion to compel arbitration

is an interlocutory order.”). The trial court’s conclusions of law are reviewed de novo

on appeal. Hager v. Smithfield E. Health Holdings, LLC, 264 N.C. App. 350, 354-55,

826 S.E.2d 567, 571 (2019)

III. Analysis

A. N.C. Gen. Stat. § 1-569.7(a)(2)

N.C. Gen. Stat. § 1-569.7(a)(2) (2023) provides:

(a) On motion of a person showing an agreement to

arbitrate and alleging another person’s refusal to arbitrate

pursuant to the agreement:

....

(2) If the refusing party opposes the motion, the court

shall proceed summarily to decide the issue and order

the parties to arbitrate unless it finds that there is no

enforceable agreement to arbitrate.

The trial court must perform a two-step analysis “to ascertain both: (1) whether

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TYSON, J., dissenting

the parties had a valid agreement to arbitrate; and also, (2) whether the specific

dispute falls within the substantive scope of that agreement.” U.S. Trust Co., N.A.,

199 N.C. App. at 290, 681 S.E.2d at 514.

Defendant argues MSA Section 26 “did not prescribe [nor proscribe] terms for

arbitration,” did not expressly prohibit it as a procedure or remedy, and “addressed

dispute resolution only to the extent it involved senior management, mediation by

mutual agreement, and access to the courts for the limited purpose of tolling the

statute of limitations and to avoid irreparable damage or preserve the status quo[.]”

Defendant correctly asserts the MSA does not expressly contain anything about

arbitration, does not “address” arbitration, and does not exclude or render Article 16

of the Construction Contract null and void.

B. Standards of Interpretation

The Construction Contract is a separate, distinct, specific, and more recent

contract between the parties, which contains all essential elements of a valid express

agreement. Wood-Hopkins Contracting Co., 284 N.C. at 738, 202 S.E.2d at 476.

Article 16 requires the parties to arbitrate resolution of their disputes on these larger-

scale construction projects.

Defendant correctly argues the MSA and the Construction Contract must be

read “harmoniously,” where a procedure or remedy is not mentioned nor prohibited

by the MSA, and the court is required to give effect to the provisions of both

agreements. Agreements between the parties must be interpreted together, any

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TYSON, J., dissenting

dispute between the parties must first be submitted to senior management in

accordance with MSA Section 26, then either party may seek to resolve the dispute

through non-binding mediation, also in accordance with MSA Section 26. Absent

mutual agreement to mediate, the dispute shall be subjected to arbitration in

accordance with Article 16 of the Construction Contract.

The trial court and the majority’s opinion failed to recognize or give effect to

the parties’ express agreement that, “Notwithstanding any other provision of this

Agreement,” a party may only immediately pursue court action in order “to toll the

statutes of limitations or to seek injunctive or equitable relief” pursuant to MSA

Section 26.

Trial and appellate courts must “enforce the parties’ intent as evidenced by the

clear and explicit language of the agreement(s).” Morrell v. Hardin Creek, Inc., 371

N.C. 672, 686, 821 S.E.2d 360, 369 (2018). “Where the terms of a contractual

agreement are clear and unambiguous, the courts cannot rewrite the plain meaning

of the contract.” Internet East, Inc. v. Duro Commc’ns, Inc., 146 N.C. App. 401, 405,

553 S.E.2d 84, 87 (2001) (internal citation omitted). The agreements must be

reviewed and enforced “in a manner that gives effect to all of its provisions, if the

court is reasonably able to do so.” Johnston Cty. v. R.N. Rouse & Co., Inc., 331 N.C.

88, 94, 414 S.E.2d 30, 34 (1992) (internal citation omitted).

C. JRM, Inc. v. HJH Companies, Inc

There is no finding nor conclusion the terms of either contract are ambiguous.

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TYSON, J., dissenting

The majority’s opinion further compounds this error by relying upon JRM, Inc. v.

HJH Companies, Inc., 287 N.C. App. 592, 598, 883 S.E.2d 217, 221 (2023). This Court

dismissed the appeal because no valid arbitration agreement existed, and no

substantial right was affected. This reliance is contrary to the express and plain

language of the admittedly-valid Construction Contract, not the MSA, which Plaintiff

specifically seeks to enforce, not in arbitration, as contractually required, but in the

trial court. Resorting to the trial court for breach is specifically prohibited in the

MSA, except as specifically allowed therein.

The trial court erroneously concluded as a matter of law, “It is not necessary

for the Court to determine whether the MSA and [the Construction Contract] dispute

resolution provisions conflict because the MSA explicitly states that where a ‘topic’ or

‘remedy’ is addressed in the MSA, then a corresponding topic or remedy in the

[Construction Contract] is null and void.”

The fallacy and prejudicial error therein is neither arbitration as a procedure,

topic, nor remedy is mentioned at all in the MSA and is certainly not specifically

excluded. Where the parties themselves later agreed to and adopted this procedure

as an additional remedy to resolve disputes, it controls. Wood-Hopkins Contracting

Co., 284 N.C. at 738, 202 S.E.2d at 476.

MSA Section 7(d) also specifically provides. “To the extent that a topic is not

addressed or a remedy is not provided for in this Agreement, then the terms of the

[project-specific contract] shall control for that specific topic or remedy.” (emphasis

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TYSON, J., dissenting

supplied). The trial court also made no findings or conclusions concerning Plaintiff

wrongfully filing claims in court for breach of contract and to foreclose a lien in court,

where those actions are also specifically excluded as a remedy in the MSA Section

7(d) and are specifically prohibited by the agreement to arbitrate in the Construction

Contract. MSA Section 26 expressly limits the parties’ access to the courts:

“Notwithstanding any other provision of this Agreement, each Party is entitled to

immediate access to the courts to: (i) toll any statute of limitation or (ii) seek

appropriate injunctive relief or other equitable remedy if, in such party’s sole

discretion, such action is deemed necessary to avoid irreparable damage or preserve

the status quo.”

The trial court and the majority’s opinion errs by giving primacy to a clause

that “addresses a topic” as opposed to the MSA not mentioning a “topic” nor

prohibiting a process or remedy. The trial court and the majority’s analysis also

ignores the plain language of the MSA to expressly limit either parties’ initial access

to the courts under the circumstances specifically stated: “each Party is entitled to

immediate access to the courts to: (i) toll any statute of limitation or (ii) seek

appropriate injunctive relief or other equitable remedy if, in such party’s sole

discretion, such action is deemed necessary to avoid irreparable damage or preserve

the status quo.” The topics and remedies in the contracts are simply not mutually

exclusive.

Plaintiff’s claims being asserted in court also directly violates this specified

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TYSON, J., dissenting

provision in the MSA, a “Notwithstanding” provision that expressly overrides all

others contained therein. The two agreements contain “no indication” one clause was

to “override” or exclude the other contract provision, where a process and remedy was

not specifically named or excluded, and where express limitations on filing suit for

relief for disputes is available only through specifically agreed-upon arbitration. See

Lowder, Inc. v. Highway Comm., 26 N.C. App. 622, 642, 217 S.E.2d 682, 695 cert.

denied, 288 N.C. 393, 218 S.E.2d 467 (1975).

The trial court and the majority’s opinion prejudicially err in denying

Defendant’s motion to compel arbitration and to dismiss Defendant’s timely appeal.

The decision to dismiss Defendant’s timely appeal is also contrary to the Supreme

Court of the United States’ holding in “Jurisdiction over the appeal, however, ‘must

be determined by focusing upon the category of the order appealed from, rather than

the strength of the grounds for reversing the order.’” Arthur Andersen LLP v.

Carlisle, 556 U.S. 624, 628, 173 L.Ed.2d 832, 838 (2009) (citing Behrens v. Pelletier,

516 U.S. 299, 311, 133 L.Ed.2d 773 (1996)). In other words, even if a litigant actually

has no right to arbitrate and a trial court so determines, the party is still entitled to

an immediate appeal and review on that issue.

IV. Admission of Untimely Second Affidavit

As I vote to address the merits of this timely interlocutory appeal and to

reverse the trial court’s denial of Defendant’s motion to compel arbitration, I also

address the trial court’s error in admitting an untimely affidavit to supplement the

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record. The trial court also granted Plaintiff’s Motion to Supplement the Record with

an additional untimely affidavit (Second Affidavit), which it had served on Defendant

the night prior to hearing.

North Carolina Rules of Civil Procedure 6(d) requires affidavits in support of

a motion to be served with the motion and, unless as otherwise provided, affidavits

in opposition to a motion must be served at least two days prior to the hearing on the

motion. N.C. Gen. Stat. § 1A-1, Rule 6(d) (2023).

Rule 6(d) further provides:

If the opposing affidavit is not served on the other parties

at least two days before the hearing on the motion, the

court may continue the matter for a reasonable period to

allow the responding party to prepare a response, proceed

with the matter without considering the untimely served

affidavit, or take such other action as the ends of justice

require.

Id. There are no findings or conclusions to support or excuse Plaintiff’s express

violation of Rule 6(d). Id.

The trial court simply stated the Second Affidavit was submitted in purported

response to an argument Defendant had raised in its memorandum opposing

Plaintiff’s Motion to Stay Arbitration. The order is devoid of any basis to deviate from

the stated requirements of Rule 6(d), and it should have been excluded. Id.

V. Conclusion

The trial court committed reversible error in denying Defendant’s motion to

compel and allowing Plaintiff to supplement the Record with the untimely Second

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TYSON, J., dissenting

Affidavit. The trial court’s order is properly reversed and remanded for entry of an

order allowing Defendant’s motion to compel arbitration and to strike Plaintiff’s

untimely affidavit. The majority’s dismissal of Defendant’s timely appeal is also

erroneous and prejudicial. I respectfully dissent.

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