UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-2273

SENIOR MANAGEMENT, INCORPORATED; PARKER

MANUFACTURING, INCORPORATED; PARKER

ENTERPRISES, INCORPORATED,

Plaintiffs - Appellees,

versus

MICHAEL CAPPS; G. GEOFFREY CRAMER,

Defendants - Appellants,

and

ARNETT GROUP, L.L.C.; CORNELL FUNDING

SYNDICATE, L.L.C.; JOHN H. BELCH; MONEYQUEST,

L.L.C.; INTERNATIONAL FINANCES, LTD; JERRY

ZEDNER; WILLIAM KOERNER; CAPITAL INVESTMENT

AGENCY; DAVID E. DAWKINS,

Defendants.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle,

District Judge. (5:04-cv-00651-BO)

Submitted: April 20, 2007 Decided: June 19, 2007

Before NIEMEYER and WILLIAMS, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.
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Michael Capps, G. Geoffrey Cramer, Appellants Pro Se. Donald G.

Hunt, Jr., Jamie L. Vavonese, Amie C. Sivon, AKINS, HUNT & FEARON,

P.C., Fuquay-Varina, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Senior Management, Inc., Parker Manufacturing, Inc., and

Parker Enterprises, Inc. (“Plaintiffs”) brought this action against

Moneyquest, L.L.C., and two of its partners, Michael Capps and

Geoff Cramer (“Appellants”), as well as other individuals and

organizations (“Defendants”), alleging Appellants and Defendants

stole hundreds of thousands of dollars from them and deprived them

of millions of dollars in lost business opportunities through an

advanced fee scheme. Appellants moved to have the claims against

them dismissed or, in the alternative, compelled to arbitration.

The district court denied Appellants’ motion, and Appellants timely

appealed, challenging only the district court’s denial of their

motion to compel arbitration. Because we conclude the district

court erred in denying Appellants’ motion to compel, we vacate that

portion of the district court’s order and remand for further

proceedings.

Plaintiffs entered into agreements with Appellants

whereby Appellants agreed to obtain large commercial loans for

Plaintiffs in return for Plaintiffs’ payment of costs associated

with procuring the loans. The agreements entered into between

Plaintiffs and Appellants were for a limited duration, one

agreement for 120 days, and the other for ninety days.

Additionally, both agreements contained an arbitration provision

which provided that “[a]t the option of [Appellants], any dispute
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arising out of this agreement may be referred for Arbitration in

accordance with the rules of [sic] American Arbitration Association

at their office in Charlotte, North Carolina.” 

In accordance with the agreements, Appellants introduced

Plaintiffs to one of the Defendants who claimed he could obtain

loans for Plaintiffs, and Plaintiffs paid him an advance fee for

the loans. Plaintiffs never obtained the loans, and their advance

fees were never returned. Plaintiffs’ claims against Appellants

and Defendants include securities fraud, common law fraud, unfair

and deceptive trade practices, breach of fiduciary relationship,

and negligent misrepresentation. 

This court may exercise jurisdiction only over final

orders under 28 U.S.C. § 1291 (2000), and certain interlocutory and

collateral orders under 28 U.S.C. § 1292 (2000). See also Fed. R.

Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546-47 (1949). The Federal Arbitration Act (“FAA”), however,

expressly permits an immediate appellate challenge to a district

court’s denial of a motion to compel arbitration. See 9 U.S.C.

§ 16(a)(1)(B) (2000); Am. Cas. Co. v. L-J, Inc., 35 F.3d 133, 135

(4th Cir. 1994); see also Kansas Gas & Elec. Co. v. Westinghouse

Elec. Corp., 861 F.2d 420, 422 (4th Cir. 1988) (finding district

court order denying motion to compel arbitration an appealable

interlocutory order under 28 U.S.C. § 1292(a)(1)). This court

reviews the district court’s denial of a motion to compel
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arbitration de novo. See Johnson v. Circuit City Stores, 148 F.3d

373, 377 (4th Cir. 1998). 

 

I. Existence of Valid Agreement to Arbitrate

The district court denied Appellants’ motion to compel

arbitration because it determined that, since the arbitration

provision left the decision whether to arbitrate entirely to

Appellants’ discretion, the provision was “illusory and

unenforceable.” We conclude the district court erred because North

Carolina law does not require mutuality of obligation in

arbitration agreements.

Under the FAA, a party may compel arbitration if it can

demonstrate: “(1) the existence of a dispute between the parties,

(2) a written agreement that includes an arbitration provision

which purports to cover the dispute, (3) the relationship of the

transaction, which is evidenced by the agreement, to interstate

commerce, and (4) the failure, neglect or refusal of the [other

party] to arbitrate the dispute.” Adkins v. Labor Ready, Inc., 303

F.3d 496, 500-01 (4th Cir. 2002). 

The issue of whether an arbitration agreement exists

between the parties, however, is a question of state contract law.

See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944

(1995); see also Hill v. Peoplesoft USA, Inc., 412 F.3d 540, 543

(4th Cir. 2005) (holding that although federal law governs the
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arbitrability of disputes, ordinary state-law principles resolve

issues regarding the formation of contracts). Thus, state law

determines questions “concerning the validity, revocability, or

enforceability of contracts generally.” Perry v. Thomas, 482 U.S.

483, 492 n.9 (1987).

North Carolina law provides that so long as the contract

as a whole is supported by adequate consideration, there is no

requirement that an arbitration provision in the contract place an

obligation to arbitrate on all parties to the contract. See

Tillman v. Commercial Credit Loans, Inc., 629 S.E.2d 865, 874-75

(N.C. Ct. App. 2006) (“Under North Carolina law, ‘mutuality’ merely

requires consideration on each side of a contract. Mutuality does

not require that each of the contract terms must apply equally to

both parties to be enforceable.”); see also Strategic Outsourcing,

Inc. v. Stacks, 625 S.E.2d 800, 803 (N.C. Ct. App. 2006) (holding

that provision allowing one party to exempt its claims from

arbitration is not unreasonable and unconscionable for want of

mutuality).

Despite the foregoing, Plaintiffs claim that because they

were fraudulently induced into entering the agreements, this court

should separately view the arbitration provision to determine if

that provision is supported by consideration. They cite Prima

Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), to

support this assertion. Plaintiffs’ argument is meritless.
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In Prima Paint, the Supreme Court held that when

considering whether an issue of fraud should be determined by an

arbitrator or the district court, the district court must determine

whether the claim is “fraud in the inducement of the entire

contract” or fraud in the inducement to enter the arbitration

provision. If the plaintiff asserts fraud in the inducement of the

contract as a whole, the district court must defer the matter to an

arbitrator to determine the validity of the claim. If the

plaintiff asserts fraud in the inducement to enter the arbitration

provision, the district court may adjudicate the claim. Id. at

403-04. 

Plaintiffs’ assertions to the contrary, Prima Paint does

not stand for the proposition that the district court may look to

an arbitration provision in isolation to determine if that

provision is independently supported by consideration. See

Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996)

(holding that federal courts must not "singl[e] out arbitration

provisions for suspect status" but should evaluate arbitration

agreements with the same standards as other contracts); Tillman,

629 S.E.2d at 874 (“[A] single consideration may support several

promises; it is not necessary that each promise have a separate

consideration. Hence, a covenant which imposes obligations upon

one party only may be enforceable if it is part of an entire

contract which is supported by a sufficient consideration.”).
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Because Appellants agreed to secure commercial loans in exchange

for non-refundable processing fees, the agreements as a whole were

supported by adequate consideration. Accordingly, we conclude the

district court erred in holding the arbitration provisions were

invalid. 

Prima Paint is instructive of the outcome of this appeal,

however. Because Plaintiffs assert they were fraudulently induced

by Appellants to enter the agreements, but do not specifically

assert they were fraudulently induced to enter into the arbitration

provisions contained therein, the district court lacks authority to

determine the validity of Plaintiffs’ claims against Appellants.

Rather, the district court must defer Plaintiffs’ claims against

Appellants to arbitration. See Prima Paint, 388 U.S. at 403-04.

II. Claims Covered By Arbitration Provision

Plaintiffs argue on appeal that even if the district

court erred in denying Appellants’ motion to compel, only

Plaintiffs’ claims that accrued prior to the expiration of the

agreements may be deferred to arbitration. Because the district

court denied the motion to compel arbitration, it had no occasion

to rule on this issue.

In determining which claims are subject to arbitration,

a district court must consider whether an intent exists to defer

all or certain claims to arbitration regardless of whether the
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claims accrued before or after the contract’s termination date.

See Virginia Carolina Tools, Inc. v. Int’l Tool Supply, Inc., 984

F.2d 113, 118-19 (4th Cir. 1993). This determination may well

require an evaluation of when the plaintiff’s claims accrued, when

the contract terminated, and the intent of the parties, as

evidenced by the contractual language. These are issues best left

to plenary consideration by the district court on remand.

For the foregoing reasons, we vacate the district court’s

order denying Appellants’ motion to compel arbitration, and remand

the matter to the district court for a determination of which

claims, if any, should be deferred to arbitration. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

VACATED AND REMANDED