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McCrary v. Byrd2/1/2000
mount to a waiver of her right to arbitration. We do not believe that plaintiff's fears are well-founded. Without expressing any opinion as to whether events prior to plaintiff's motion to compel arbitration amount to a waiver, plaintiff clearly did not acquiesce in Nationwide's attempts to complete the deposition process, and objected to the order of the trial court allowing discovery to go forward. It is difficult to imagine that complying with an order of the trial court to which one objects would amount to a waiver of the right to arbitration. In Cyclone, after stating that courts are reluctant to find a waiver of arbitration, the Supreme Court held that "a party has impliedly waived its contractual right to arbitration if by its delay or by actions it takes which are inconsistent with the arbitration, another party to the contract is prejudiced by the order compelling arbitration." Cyclone, 312 N.C. at 229, 321 S.E.2d at 876 (footnote omitted). Plaintiff's actions in resisting further discovery efforts would seem to be consistent with her desire for arbitration, and Nationwide would be hard-pressed to show that it was prejudiced by the grant of its own motion.
We also note that although plaintiff contended on oral argument that she had a right to appeal because the order of 28 July 1998 included sanctions for discovery violations, plaintiff does not discuss that assignment of error in her brief, and it is deemed abandoned. N.C.R. App. P. 28(a).
Plaintiff's appeal is dismissed and the case is returned to the trial court for compliance with the orders of that court. If after the completion of discovery as previously ordered the trial court allows the plaintiff's motion to compel arbitration, completion of discovery will likely prove helpful to the arbitrator who will have the benefit of information discovered by both parties. Should the trial court deny plaintiff's motion to compel arbitration, plaintiff will then have the right to seek review of that denial from this Court.
Plaintiff having had the opportunity to complete discovery, we find no abuse of discretion on the part of the trial court in allowing Nationwide a brief time to complete its discovery efforts, particularly since those efforts began prior to plaintiffs' motion to compel arbitration.
Plaintiff's appeal is dismissed.
Judges MARTIN and TIMMONS-GOODSON concur.
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