*1 MILON v. UNIV. DUKE [145 (2001)] consideration, any, if given the affidavits were the trial court. Thus, we need address this issue further. conclusion,
In portion we affirm that of trial the court’s order the concluding passage subject that of Ordinance No. was the protest petition statutes, portion and we reverse that trial the concluding court’s order that the class lots affected Ordinance only No. 2427 upon “off-premises includes those which signs” required to be amortized under Ordinance No. 2427 were located at passage. Further, the time of its we hold that the are not summary Unruh, entitled to judgment under because defendant has far thus met its affirmative duties under §§ N.C.G.S. 160A-385and Finally, 160A-386. the case remanded to determine whether those protest petitions City twenty per- that were filed the with constitute the (20%) cent lots included in 2427. making Ordinance No. this determination, the be, denominator used minimum, to be should at a City’s jurisdiction the area zoning within was permit zoned to “off-premises signs” passed. at time Ordinance No. 2427 was It is undisputed figure 4,928 from record that this acres. The numer- actually represented by ator to be is the used area of the lots protest petitions timely Thus, which were filed. the matter is proceedings remanded to the trial court further with consistent opinion. this part, part,
Affirmed in reversed in and remanded.
Judges WALKERand HUNTERconcur. P. JAMES DEWEY MILON ROSA Plaintiffs v. DUKE DUKE MILON, UNIVERSITY; UNIVERSITY HEALTH PRIVATE DIAGNOSTIC PRI- SYSTEM, INC.; LLP; CLINIC, VATE DIAGNOSTIC DAVID F. PETER S.A. CLINIC, PLLC; PAULSON, M.D.; and MARY Defendants GLASS, M.D.; CRNA, CRODELLE,
No. COA00-1246
(Filed August 2001) agreement 1. Arbitration and Mediation— arbitration —wife husband’s name — malpractice The trial court erred con- medical action parties’ cluding binding was not based plaintiff the fact wife her husband’s name to the THE COURT
MILON DUKE UNIV. *2 sufficiently strong (1) the evidence agreement, because: plaintiff wife her husband’s at the times establish that authority husband; and name, apparent from her she did so with plain- prudence relying in defendants exercised reasonable (2) in to act on behalf of husband tiff wife’s agreement. arbitration signing his name agreement— arbitration 2. Arbitration and Mediation— waiver by malpractice fail- in a action
The trial court erred medical com- right waived their ing to determine whether defendants by by prejudice to pel caused reason delay taken which are inconsistent or actions defendants have with arbitration.
3. Arbitration and Mediation— arbitration —mis- overreaching—unfair advan- of mutual take — lack assent — tage influence — constructive fraud —undue malpractice by fail- in a action The trial court erred medical parties’ agreement was ing to determine whether assent, overreaching, unfair mistake, result lack of mutual influence, constructive fraud. advantage, undue and/or Judge dissenting. Thomas by by from an entered 26 June 2000
Appeal defendants order County Spencer, Superior in Court. Heard Judge James C. Jr. Durham Appeals 6 June 2001. the Court Wilkerson, P.A., Bugg; E. Miller & Bugg, & John Wolf Malone, s-appellees. Martin, by Gayle Jr., plaintiff LLP, for L.L.P, by Simpson M. Fulbright M. and Karen & Jaworski John Holton, Moran; Allen, PLLC, by & R. and Moore Van Charles for University defendants-appellants University, Duke Duke System, Diagnostic Clinic, LLP, Private Inc., Health Private M.D., Mary Clinic, PLLC, Glass, Diagnostic Peter S.A. Crodelle, CRNA. Anderson, E.
Patterson, Dilthey, Clay, Bryson, & Mark Paulson, F. M.D. defendant-appellant David WALKER,Judge. dispute
This action involves a right compel over defendants’ malpractice arbitration in a April medical case. through From 3 2000,plaintiff Dewey Milon, March James regularly was treated Dr. A. Family Warren Blackburn at Franklin (Franklin) Medicine Louisburg, May North Carolina. On Diagnostic Private Clinic, LLP and the Private Diagnostic Clinic, (collectively PLLC PDC), purchased practice the Franklin and Dr. Blackburn became a PDC member. professional
The PDC liability company is a sepa- limited that is University rate from (Duke) University Duke and Duke Health *3 System (Duke Health). However, positions PDC members hold on the University faculty Duke they Medical School option and have the of providing patients health services to at Duke through their PDC affil- Upon purchase iation. PDC’s Franklin, the office continued to operate Family under the name of Franklin Medicine.
Mr. Milon surgery University underwent at Duke Medical Center prostate for cancer on 22 Immediately December 1998. after the surgery, Mr. paralysis Milon suffered from irreversible from the waist down. Mr. paralysis and Mrs. Milon contended that the was the result negligence part of medical defendants, on the and retained February represent counsel in 1999 to against them their claims injuries defendants for and damages.
As of June Dr. defendants Blackburn and the Franklin staff represented by were aware that the Milons were concerning counsel malpractice July 1999, claims. the Milons’ counsel and defend- agreed pre-suit ants’ counsel non-binding a mediation of the malpractice Milons’ claims. On October defendants’ counsel provided all medical records concerning Mr. Milon’streatment to his counsel. On 8 November the mediation was conducted but was unsuccessful.
8On December Mr.Milon Dr. saw Blackburn at Franklin for pain treatment of ongoing and to review his medications. presented Defendants assert that were with an “Assignment of Benefits” form “Assignment at this visit. The of Benefits” form is a one-page document with (1) three sections which are: a Release of Medical Information Company, (2) to Insurance an Agreement to Dispute (arbitration Alternative Resolution agreement), (3) and a Responsibility. Statement of Financial Each of these three sections of separate the form signature has lines. THE COURT issue, it agreement at is the arbitration
The second section follows: binding arbitration as provides for final and DISPUTERESOLUTION TO ALTERNATIVE AGREEMENT Arbitration the terms of the United States In accordance with pro- to the Act, any dispute arising out of or related agree I University, Duke health care services to me vision of employees, physician (PDC), or their Diagnostic Private Clinic subject binding final and resolu- partners, agents, shall be exclusively the Health Care Claim Settlement through tion copy Association, a of the American Arbitration Procedures upon request. I to me understand this which is available previously all care which agreement includes health services provided to me and that this been or will in the future be have to those health care services rendered agreement is not restricted I that this with this admission or visit. understand connection voluntary precondition receiving and is not agreement care health services[.] doing this so on
NOTE: If the individual whom he her minor child or other behalf of his or affirms that he legally responsible, signature below or she is obligation to contract with Duke or she has the University provision and the PDC for the of health care services person, or other and that his or her execution to that minor child *4 obligation. in furtherance of that or agreement of this (signature) James D. Milon 12-8-1999 Patient, Parent, Guardian, or DATE Representative
Authorized signature also states under the line: agreement The arbitration Parent, Guardian, Patient, of the signature If the is not that relationship the Patient for indicate below sign. the reason Patient is unable to and Relationship:_ sign:_
Reason Patient unable signa- is written on the name James D. Milon or James Milon The requesting The line the rela- ture lines in each of the three sections. patient tionship person signing and the is blank. Neither between the signing of Mr. nor the Franklin staff witnessed the Dr. Blackburn form, Milon’s handwriting expert name on the but defendants’ con- signed cluded that Mrs. Milon her husband’s name to the form. expert handwriting dispute Plaintiffs’ did finding. this depositions Two members of the Franklin staff testified their upon the execution of an agreement, the date of agreement patient’s computer sys- is entered into the records on the Additionally, copy signed tem. of the agreement is sent from Franklin to Duke. complaint
Plaintiffs filed a on 23 alleging December 1999 medical negligence Thereafter, and loss of consortium. served defend- interrogatories requests ants with production of documents. 2000,plaintiffs On 6 March complaint. filed an amended On 10 March 2000, counsel for defendants conducted a search for all of Mr.Milon’s medical records. This search revealed that Mr. Milon being was treated at Franklin and that his Franklin medical records contained agreement the arbitration dated 8 December 1999.
On 24 compel March defendants filed a motion to arbitra- alternative, tion. In the plain- defendants moved for dismissal of all of pursuant tiffs’ claims 12(b)(1) 12(b)(3) Rules of the North Thereafter, parties Carolina Rules of Civil engaged Procedure. discovery, hearing, further and after a the trial court denied defend- compel complaint. ants’ motion to arbitration or to dismiss the order, In its trial court concluded that there was credible evi- dence that Mrs. Milon agreement, husband’s name to the but that Dewey there was “no credible evidence that James Milon of, authorized, knew consented to or ratified Rosa P. Milon so doing Dewey or that James any Milon authorized Rosa P. Milon or other person to act writing as his or authorized the of his name on the agreement].” The trial court concluded that “there does [arbitration agreement parties not exist valid or enforceable between the require plaintiffs’ would the arbitration against of the claims defendants.”
I. [1] Defendants contend that the arbitration binding, *5 agent since Mrs. Milon acted as Mr. signed Milon’s when she his name agreement. to the Plaintiffs maintain that Mrs. Milon did not have the authority to bind Mr. if agreement; Milon to the arbitration and even did, mistake, she is not valid because it result of assent, overreaching, advantage, lack of mutual unfair influ- undue THE 614 COURT v. DUKE UNIV.
MILON
609
Furthermore,
contend that
and/or constructive fraud.
ence
judicial discovery procedures prior delay
use of
defendants’
have waived
prejudicial such that defendants
seeking arbitration are
compel arbitration.
right
contractual
Supreme
agent
an
as “one who acts for or
Our
Court has defined
by authority
Creasy,
him.”
v.
place
another
from
Trust Co.
Lawton,
117,
citing
v.
44, 56,
(1980),
269 S.E.2d
124
Julian
301 N.C.
a wife has
436,
(1954).
In the case at defendants apparent authority to of her husband. actual or act behalf testimony by staff, point to the the Franklin which Defendants would check her that, surgery, reveals after Mr. Milon’s Mrs. Milon Franklin, paperwork him, sign fill and either her husband at out name or her husband’s name to his medical records. Mrs. Milon also at various times when signed Mr.Milon’sname to his medical records enough himself, do so as well as times when he he was not well Further, capable signed was for himself. Mrs. Milon had presence, name including signed husband’s name in his when she his Additionally, there was other evidence agreement. on the arbitration had her husband’s name on documents other that Mrs. Milon than his medical records. if does not establish that Mrs. Milon acted with
Even the evidence
sign
name,
her husband’s
we must decide
the actual
apparent authority
whether she had
to so act. See Research
Corporation
Co.,
(1965)
IN THE COURT OF UNIV. MILON v. DUKE (2001)] N.C. 609 [145 may authority, con- implied “a apparent or regard to [husband] be the evidence must but, establish this agent, his stitute the [wife] sufficiently explain and remove satisfactory, strong clear and by placed reason of rela- in which is equivocal character [his] [he] 24 585, 588, 222 S.E.2d Speight, Pitt v. tion of [husband].” authority apparent is determined scope agent’s an “The (1943). 352 by the manifestations of representations but by agent’s own Craighill, McGarity v. principal to him.” authority which the accords App. 106, 109, 349 S.E.2d Blyth, P.A., 83 N.C. Randleman, Ingle & (1986). conclusion, is suf- the evidence Here, contrary to the trial court’s Mrs. Milon ficiently that at the times strong to establish authority her hus- apparent from name, did so with husband’s she authority apparent Milon had the Therefore, we conclude Mrs. band. his name signing husband to the arbitration to bind her 1999. on 8 December authority apparent signing in with though Mrs. Milon acted
Even must still be deter- agreement, it name to the arbitration Mr. Milon’s authority. apparent this in reliance on mined if defendants acted concerned, the real persons are authority, so far as third Apparent reliance, in person with the authority, long as the third “dealt as in prudence, faith, in of reasonable thereon, in the exercise good . . .” agent. the acts of the principal will be bound which case the 208, Smitherman, 101 S.E. Ry. Southern Norfolk Also, this Court has held: represents permits it to person words or conduct Where a will be agent, he represented that another be persons who have deny third agency against as estopped to person so held representation, with the faith of such dealt, on the in fact. agency if no existed agent, as even out S.E[2d at 397. Hayman at Mrs. previously relied on case, Franklin had present staff at
In the medical name to his authority sign her husband’s apparent Milon’s office, exercised Franklin defendants, through their Thus, records. relying on Mrs. Milon’s prudence reasonable his name to the of her husband act on behalf agreement.
MELON v. DUKE UNIV. II. [2] Defendants next contend done or failed to do “have not any *7 thing present in the estop lawsuit that would them from seeking arbi tration or that would constitute a of rights waiver their to have the Milons’ claim arbitrated.”
Initially,
strong public policy
we note the
in North Carolina favors
disputes by
settling
Cyclone
means of arbitration.
Roofing Co. v.
Co.,
224, 229,
LaFave
312 N.C.
321 S.E.2d
(1984).
Because of
policy,
this strong
closely
courts must
allegation
scrutinize
of
right.
waiver of such a favored
Id. Arbitration
legal right;
is not a
it is
a
of
may
matter
contract which
be waived.
Bright,
Sullivan v.
App. 84,
(1998).
and held:
Because of the waiver, reluctance to find party we hold that a has impliedly right waived its contractual delay to arbitration if its actions it takes which are arbitration, inconsistent with party another to the prejudiced by contract is the order com- pelling arbitration. party may prejudiced
A if, be example, it is forced to bear the expenses a lengthy trial; of helpful party evidence to a is lost delay because of seeking of arbitration; party’s opponent a judicial advantage discovery takes of procedures not available in arbitration; or, by delay, party reason of steps has taken in liti- gation to its expended detriment or significant money amounts of thereupon.
Id. at 230, 321 (citations S.E.2d at 876-77 omitted). Here, the trial court did not address the issue of whether defend- ants waived right compel their to prejudice arbitration reason of plaintiffs. to initially The lawsuit was filed on 23 December 1999. immediately Defendants did responsive file a pleading, but were granted an extension of time. Plaintiffs then filed an amended com- plaint on 6 discovery March 2000. Even though ongoing, was defend- ants contend first became aware of the agreement 10 March Subsequently, 2000. compel defendants moved to arbitra- tion on 24 remand, March 2000. On the trial court must determine THE COURT v. DUKE UNIV.
MILON have prejudiced such that defendants plaintiffs have been whether compel right their arbitration. waived
III. [3] Plaintiffs contend that the arbitration agreement was not the mistake, lack of assent, the result but rather was result mutual influence, assent, advantage, unfair undue overreaching, mutual constructive fraud. and/or exist a valid dispute may arbitrated, be there must first
Before a partyA (1999). 1-567.2 seek- § arbitrate. Gen. Stat. mutually agreed compel parties ing arbitration must show that Tools, Snap-On disputes. 108 N.C. their Routh arbitrate 271-72, 423 S.E.2d Here, to address whether the the trial court failed assent, over- mistake, lack of mutual agreement was the result *8 advantage, influence, undue and/or constructive reaching, unfair remanded to Therefore, reversed and the matter is fraud. the order is opinion. consistent with this proceedings the trial court for Reversed and remanded.
Judge concurs. McCULLOUGH
Judge THOMASdissents.
THOMAS,Judge, dissenting. authority into apparent to enter Mrs. Milon did not have
Because
husband,
her
and because
an
on behalf of
the
reasonably
prudently
relied on
have
defendants could not
her,
respectfully
I
dissent.
as signed
form
authority
principal has held
authority is
which the
Apparent
that
to
permitted
agent
the
possessing which he has
agent
the
out as
or
Allen,
&
N.C.
possesses.
Hogg
v.
286
represent
he
Zimmerman
authority
simply
Apparent
does not arise
(1974).
S.E.2d 795
209
142, 146, 152
Ledbetter, 269
S.E.2d
v.
marriage.
Beaver
virtue
alone,
not
Milon,
did
Thus, Mrs.
Mr. Milon’swife
as
authority
his
to
behalf.
apparent
contract
have
authority
apparent
to bind
Mrs. Milon had the
majority holds
The
there was evidence
agreement because
to an arbitration
her husband
THE
OF
COURT
APPEALS
signed
deciding
she earlier
some documents for him. When
whether
past
gives
authority, however,
pur-
conduct
rise to
isit
the
ported principal’s conduct,
that of
agent,
the
which must be con-
McGarity Craighill, Rendleman, Ingle Blythe, P.A.,
sidered.
&
App. 106,
S.E.2d
(1986),
denied,
disc. rev.
319 N.C.
(1987). Thus,
past
Under the focus should be the conduct of Mr. in determining apparent authority Milon whether Mrs. Milon had to bind him to the Id. arbitration contract. There no evidence that Mr. permitted Milon ever sign any Mrs. Milon to his name to documents. Mr.Milon possessing has neither held Mrs. Milon out as him, to as in permitted act his contracts nor has he represent possesses authority. Mrs. Milon to such she On the question, fact, in having occasion Mr. Milon denied seen form or sign allowing any way seen his wife the form and denied her in sign it for him.
The trial findings regard unequivocal. court’s in this are The trial court found
there has no presented Dewey been credible evidence that James Agreement Milon Dispute Resolution, to Alternative agreed subject submit claims which are the of this action person arbitration, any authorized to bind him to arbitra- such tion authorized agent writing act as his Dispute name on Agreement to Alternative Resolution. *9 (Emphasis added). Further, the court found “there is no credible evi- Dewey that of, authorized, dence James Milon knew consented to or Dewey ratified Rosa R so doing Milon or that James Milon authorized P. Rosa Milon or other to act as his or authorized the writing Agreement of his on Dispute name the to Alternative (Emphasis added). Resolution.” When the trial court the fact- finder, appeal its findings they sup- fact are conclusive if on are ported any competent evidence, though even there is evidence might support contrary a finding. which See Williams v. Insurance Co., 338, 288 N.C. 218 (1975).Here, competent S.E.2d 368 there is evi- support to findings. dence the above simply considering past
Even Mrs. Milon’s conduct in alone deter- mining apparent whether had authority, however, she there no evi- 619
IN THE COURT v. DUKE UNIV. MILON 609 name previously signed her husband’s had dence Mrs. Milon only instances she ever fact, is evidence that the presence. there him- unable to do so in situations where he was signed for him were emergency in an medical treatment receiving he was self—when pharmacy a without occasion, and when she went to on one room prescriptions. him to fill his merely Mr. Milon’s Milon insignificant
It is not that Mrs. language clear name, arbitration form. The name, her own on the not name and states requires signer sign his or her own form the the parent or of the patient, guardian the or the signer if is not the relationship to the signer is his/her patient, the to indicate then sign the form. patient the is unable to patient, as well as the reason relationship to Mr. Milon, signer, as the did not indicate Mrs. himself. The sign he the form and the reason was unable Milon under its contract, therefore, appear would unenforceable own terms. correctly not Mrs. Milon did have trial court concluded
While the
an arbitration
authority
to the terms of
to bind her husband
authority
the
agreement,
if
had
under
circumstances
even she
such
reasonably
did not
agreement,
an
defendants
enter into
rely
prudently
on it.
of a contract
party,
privileges
in order
avail itself of
A third
apparent agent, must have relied
principal’s
between itself and
of reasonable
good faith, and in the exercise
agent’s
“in
595,
Smitherman,
Ry.
178
Co. v.
prudence[.]”
Southern
Norfolk
Stores,
v. Li’l General
208,
See also Lucas
599,
101
210
S.E.
24,
Zimmerman,
209
286 N.C.
(1976);
In this can be reliance, there no reasonable and apparent authority essential for develop binding contract, into a (1) plaintiffs where: given parties the form was all after of the legal representation, had obtained mediation failed and suit was IQ imminent; sixty-nine the of Mr. (2) wife, Milon was and that of his sixty-five; (3) supports a finding record that the a signing was mistake; (4) both Mr. and medication, Mrs. Milon were on in- anti-depressants cluding help them with deal the stress of their worsening situation. majority correctly points
The party out seeking that to com- “[a] pel parties mutually arbitration must show that the agreed to arbi- disputes.” They trate their go hold, however, on to that trial court failed to making address certain issues in I determination. believe those issues were addressed the trial finding court’s authority (apparent there was no otherwise) to bind Mr.Milon to a IQs ordinarily contract. While Milons, their medical condi- tion anti-depressants and the fact on were would not defeat apparent authority, contract under here defendants were in the position unique of having years. dealt with Their medical possession records were in the of some of defendants with the anti- depressants having prescribed been Blackburn, Dr. an affiliate of PDC. The meeting lack of a of the minds here is inherent in the trial court’s finding being presented there no credible evidence by defendants to show Thus, otherwise. there no enforceable agreement. apparent authority
Because of the lack of and no reliance part respectfully defendants as to the agreement, I dissent and vote to affirm the trial court.