ERVIN, Judge.

Defendants Frank S. Woody, III, and Todd T. Yates appeal from an order denying their motion to compel arbitration with respect to the twelfth and thirteenth claims for relief asserted in the First Amended Complaint filed by Plaintiffs HCW Retirement and Financial Services, LLC; HCWRFS, LLC; and Wilton R. Drake, III.1 On appeal, Defendants argue that the trial court erred by denying their motion to compel arbitration with respect to the claims in question on the grounds that a contract between Defendants and Mr. Drake contained language providing for arbitration of these claims and that Defendants had not waived the right to have these claims submitted to arbitration by participating in discovery. Upon careful consideration of Defendants' challenges to the trial court's order in light of the record and the applicable law, we conclude that, while the trial court erred by determining that the claims in question were not covered by the arbitration clause, it did not err by determining that Defendants had waived the right to have these claims resolved in arbitration, so that its order should be affirmed.

I. Factual Background

A. Substantive Facts

Plaintiffs HCW Retirement & Financial Services, LLC ("RFS"), and HCWRFS, LLC, ("HCWRFS") are North Carolina limited liability companies, while Plaintiff Wilton Drake is a financial planner who offers retirement planning services. Defendants are financial advisers who offer investment and insurance services. Between the late 1990s and 2010, the parties were involved in various cooperative or collaborative business ventures that revolved around the provision of financial or investment advice.

On 12 August 2003, Defendants and Plaintiff Drake formed Prescott Office Management, LLC, for the purpose of entering into an office sharing arrangement pursuant to which Prescott would purchase part of an office condominium. At the conclusion of that process, Prescott became a 50% owner of Prestwick, which owns an office condominium utilized by the parties for the purpose of conducting their businesses.

At the time that they organized Prescott, the parties executed and signed an Operating Agreement that governed their rights and responsibilities with regards to Prescott and included an arbitration provision. Initially, each of the three principals had a one-third interest in and served as a manager of Prescott. In addition, the Operating Agreement provided that decisions involving the limited liability company required the approval of all three managers. In September, 2010, Defendants amended the Operating Agreement to provide that managers would be elected by majority vote and that decisions concerning Prescott could be made by a vote of 66% of the members; elected themselves managers for an indefinite term; and adopted other amendments to the Operating Agreement that gave Defendants increased authority over Prescott's operations.2 Using the authority granted to them by these amendments to the Operating Agreement, Defendants procured the non-renewal of Mr. Drake's lease for space in the Prestwick building when his lease expired in 2010.

B. Procedural History

On 26 January 2011, Plaintiffs filed a First Amended Complaint3 in which they sought 1) damages for an alleged violation of partnership obligations; 2) damages for trade name infringement; 3) cancellation of N.C. Trademark Registration No. T-020223; 4) a determination that Defendant EBS is not the owner of the trademark "Experience the Benefit"; 5) a determination that registration of the trademark "Experience the Benefit" had been obtained fraudulently; 6) cancellation of N.C. Trademark Registration No. T-020247; 7) a determination that Defendant EBS is not the owner of the HCW logo; 8) a determination that registration of the HCW logo had been fraudulently obtained; 9) cancellation of N.C. Trademark Registration No. T-020312; 10) a determination that Defendant EBS is not the owner of the trade name "Hill, Chesson & Woody"; 11) that registration of the trade name "Hill, Chesson & Woody" had been fraudulently obtained; 12) damages for breach of the duty of good faith by Defendants Yates and Woody; 13) damages for breach of fiduciary duty by Defendants Yates and Woody; 14) an accounting; 15) damages for breach of a lease agreement; 16) damages for conversion; and 17) damages for tortious interference with contractual relationships and prospective advantage. On 18 February 2011, Defendants filed an answer in which they denied the material allegations of the First Amended complaint and asserted various defenses to Plaintiffs' claims. In response to the breach of good faith and fair dealing and breach of fiduciary duty claims asserted in the First Amended Complaint, Defendants moved that further litigation be stayed and that these claims be referred to arbitration on the basis of the arbitration clause contained in the Operating Agreement.

After receiving Defendants' motion to compel, Plaintiffs filed a response denying that the claims in question were subject to arbitration and submitted an affidavit executed by Mr. Drake setting out in more detail the factual basis for the twelfth and thirteenth claims asserted in Plaintiffs' First Amended Complaint. On 8 August 2011, Plaintiffs filed a supplemental response to Defendants' motion to compel arbitration in which they asserted that:

In an affidavit attached to Plaintiffs' supplemental response, Mr. Drake stated, in pertinent part, that:

On 18 August 2011, the trial court conducted a hearing concerning Defendants' motion to compel arbitration. On 9 September 2011, the trial court entered an order denying Defendants' motion in which it found, in pertinent part, that:

Based on these and other findings, the trial court concluded that:

Defendants noted an appeal to this Court from the trial court's denial of their motion to compel arbitration.

II. Legal Analysis

A. Appealability

"As a preliminary matter, we note that Judge [Lamm's] order denying [Defendants'] motion to compel arbitration is interlocutory `because it does not determine all of the issues between the parties and directs some further proceeding preliminary to a final judgment.' However, this Court has previously determined that an appeal from an order denying arbitration, `although interlocutory, is immediately appealable because it involves a substantial right which might be lost if appeal is delayed.' Accordingly, we reach the merits of this appeal." Capps v. Virrey, 184 N.C. App. 267, 269, 645 S.E.2d 825, 827 (2007) (quoting Martin v. Vance, 133 N.C. App. 116, 119, 514 S.E.2d 306, 308 (1999) (internal citation omitted), and Prime South Homes v. Byrd, 102 N.C. App. 255, 258, 401 S.E.2d 822, 825 (1991) (internal citations omitted)).

B. Standard of Review

Raspet v. Buck, 147 N.C. App. 133, 135-36, 554 S.E.2d 676, 678 (2001) (citing Moses H. Cone Hospital v. Mercury Constr., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 787 (1983); Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 91, 414 S.E.2d 30, 32 (1992); Ragan v. Wheat First Sec., Inc., 138 N.C. App. 453, 455, 531 S.E.2d 874, 876, disc. review denied, 353 N.C. 268, 546 S.E.2d 129 (2000); and Rodgers Builders v. McQueen, 76 N.C. App. 16, 23-24, 331 S.E.2d 726, 731 (1985), disc. review denied, 315 N.C. 590, 341 S.E.2d 29 (1986)). In determining whether Defendants waived their right to have the present dispute submitted to arbitration, this Court has previously stated that:

Moose v. Versailles Condo. Ass'n, 171 N.C. App. 377, 382, 614 S.E.2d 418, 422 (2005) (quoting Cyclone Roofing Co. v. LaFave Co., 312 N.C. 224, 229, 321 S.E.2d 872, 876-77 (1984), and Prime South Homes, 102 N.C.App. at 258, 401 S.E.2d at 825 (internal citation omitted), and citing Prime South Homes, 102 N.C.App. at 261, 401 S.E.2d at 827). We will now apply the applicable standards of review to evaluate the merits of Defendants' challenges to the trial court's order.

C. Scope of Arbitration Clause

As an initial matter, Defendants contend that the trial court erred by ruling that Plaintiffs' twelfth and thirteenth claims, which rest on allegations that Defendants breached the duty of good faith and breached their duties as fiduciaries, are not subject to arbitration. In support of this argument, Defendants assert that, despite the absence of any dispute over the extent of their compliance with the Operating Agreement, the relevant claims arise from or are related to that agreement. On the other hand, Plaintiffs argue that, given their concession that Defendants' actions did not contravene the provisions of the Operating Agreement, the relevant claims are not subject to arbitration. We believe that Defendants' argument has merit.

The arbitration clause contained in the Operating Agreement provides, in pertinent part, that:

In other words, the applicable arbitration provision requires the parties to arbitrate both disputes "arising out of or in connection with, or relating to, this Operating Agreement" and those "arising out of or in connection with, or relating to ... any breach or alleged breach" of the Operating Agreement. Thus, we must examine the exact nature of Plaintiffs' claims in order to determine whether they are subject to arbitration.

The twelfth and thirteenth claims set out in Plaintiffs' First Amended Complaint rest upon allegations that:

(Breach of Good Faith by Defendants Yates and Woody as LLC Members)

(Breach of fiduciary obligation to minority member)

As a result, the claims that Plaintiffs have asserted in the relevant claims for relief rest upon actions taken by Defendants using their authority as members of Prescott. Simply put, Plaintiffs have not sought to have Defendants held liable for torts committed against unrelated individuals or that have no relationship to Prescott. Instead, the relevant claims arise from duties that Defendants allegedly owed to Plaintiffs based solely upon their involvement in Prescott. In the absence of Defendants' involvement in Prescott, the claims at issue here would lack any viability whatsoever. As noted above, the Operating Agreement sets out the parties' rights and responsibilities as members of Prescott. As a result, we conclude that Plaintiffs' claims based upon Defendants' alleged breaches of fiduciary duty and the duty of good faith and fair dealing clearly "aris[e] out of or [are] in connection with, or [in] relati[on] to" the Operating Agreement, a fact which brings those claims within the scope of the Operating Agreement's arbitration clause.

In seeking to persuade us to reach a different result, Plaintiffs emphasize that the relevant claims rest upon alleged violations of "various common law duties that they owe to [Mr. Drake]" rather than upon alleged violations of the Operating Agreement. However, as we have already noted, these "common law duties" would not exist in the absence of the parties' involvement in Prescott and are informed by the authority granted to members and managers under the Operating Agreement,4 a fact that establishes that the relevant claims are "connected with" or "related to" the Operating Agreement as those terms are used in the arbitration clause.5

We utilized similar reasoning in deciding Ellison v. Alexander, 207 N.C. App. 401, 700 S.E.2d 102 (2010), a case in which, following their decision to purchase shares in the defendant's business, the plaintiffs asserted various tort claims arising from the defendant's alleged misrepresentation concerning the nature and extent of his background and experience. At the time that they made purchases, the plaintiffs signed Subscription and Shareholder Agreements (SSAs) requiring arbitration of "[a]ll disputes and claims arising in connection with this Agreement[.]" Ellison, 207 N.C.App. at 406, 700 S.E.2d at 106. In seeking to establish that their claims against the defendants were not subject to arbitration, the plaintiffs argued that, since their claims rested upon allegedly tortious acts that the defendant had committed personally, the claims were not subject to the SSAs' arbitration provision. In rejecting the plaintiffs' argument, we held that:

Ellison, 207 N.C.App. at 411, 700 S.E.2d at 110. Similarly, the claims that Plaintiffs have asserted in this case rest upon Defendants' breach of duties that they allegedly owed to Plaintiffs arising from actions that they allegedly took as members and managers of Prescott, a fact which establishes that, as in Ellison, the relevant claims clearly relate to or are connected with the Operating Agreement. Thus, for all of these reasons, we conclude that the trial court erred by concluding that the relevant claims were not subject to arbitration.

D. Waiver

Secondly, Defendants argue that the trial court erred by determining that they had waived the right to have the relevant claims submitted to arbitration by utilizing discovery procedures that would not necessarily have been available in arbitration. We do not find Defendants' argument persuasive.

"Arbitration is a contractual right, and therefore, the right to arbitration may be waived by the conduct of the party seeking to enforce its right.... [However, in view of North Carolina's public policy favoring arbitration,] doubts over whether a certain issue is appropriate for arbitration should be resolved in a manner which favors arbitration. This is true `whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.'" Capps, 184 N.C.App. at 269-70, 645 S.E.2d at 827 (citing Miller Bldg. Corp. v. Coastline Assoc. Ltd. Partnership, 105 N.C. App. 58, 63, 411 S.E.2d 420, 423 (1992), and Smith v. Young Moving & Storage, Inc., 141 N.C. App. 469, 472-73, 540 S.E.2d 383, 386 (2000), aff'd, 353 N.C. 521, 546 S.E.2d 87 (2001), and quoting Cyclone Roofing Co., 312 N.C. at 229, 321 S.E.2d at 876 (internal quotation omitted)). Accordingly, in order "to defeat an attempt to compel arbitration [on waiver-related grounds], the opposing party must demonstrate prejudice." Id.

Smith, 141 N.C.App. at 472-73, 540 S.E.2d at 386 (quoting Servomation Corp. v. Hickory Constr. Co., 316 N.C. 543, 544, 342 S.E.2d 853, 854 (1986)).

As we have already noted, the trial court predicated its determination that Defendants had waived their right to insist that the relevant claims be submitted to arbitration on the facts that (1) Defendants questioned Mr. Drake about the "facts and circumstances related to the Twelfth and Thirteenth Claims for Relief" during the course of his deposition; (2) Plaintiffs incurred "expense in connection with the portion of the deposition of Drake related to the facts and circumstances of the Twelfth and Thirteenth Claims for Relief" given that Plaintiff was represented by counsel during his deposition; (3) the discovery relating to the relevant claims in which Defendants had engaged "would be available in arbitration only if permitted by the arbitrator"; and (4) Defendants had refused to respond to discovery requests relating to the relevant claims on the grounds that those claims were subject to arbitration. As a result of the fact that Defendants have not challenged these findings, which appear to have adequate record support, they are conclusive for the purpose of appellate review. See, e.g., King v. Owen, 166 N.C. App. 246, 248, 601 S.E.2d 326, 327 (2004) (holding, in connection with a challenge to the denial of a motion to compel arbitration, that, where the appellant "does not challenge any of the trial court's findings," this Court's review is "limited to whether those findings support the trial court's conclusions of law"). Based on these and other findings, the trial court concluded that Defendants' decision to utilize discovery procedures not available as a matter of right during arbitration while refusing to respond to discovery requests propounded by Plaintiffs concerning the same issues prejudiced Plaintiffs and worked a forfeiture of their right to have the relevant claims submitted to arbitration. Thus, the ultimate question which we must decide is whether the trial court's conclusions reflect a correct application of the pertinent law to the facts.

The extent to which a party has waived the right to have particular claims submitted to arbitration by utilizing discovery procedures that are not available in arbitration has been addressed by this Court and the Supreme Court on a number of occasions. See, e.g., Moose, 171 N.C.App. at 385, 614 S.E.2d at 424 (upholding the trial court's determination that the appellant waived the right to compel the submission of a particular dispute to arbitration by conducting extensive discovery, including deposing a party opponent and causing the opposing party to incur significant expenses), and Prime South Homes, 102 N.C.App. at 261, 401 S.E.2d at 825-26 (holding that a party had waived the right to have a dispute submitted to arbitration based, in part, upon that party's conduct in taking the deposition of a particular witness).

McCrary v. Byrd, 148 N.C. App. 630, 637, 559 S.E.2d 821, 826 (2002) (citing Palmer v. Duke Power Co., 129 N.C. App. 488, 491-92, 499 S.E.2d 801, 803-04 (1998), and Prime South Homes, 102 N.C.App. at 260-61, 401 S.E.2d at 826), cert. denied, 356 N.C. 674, 577 S.E.2d 625 (2003). As a result, North Carolina's waiver-related jurisprudence generally establishes that, in the event that a party makes material use of discovery procedures available in ordinary civil litigation that are not available in arbitration, that party has waived the right to insist that claims that were addressed during the discovery process be submitted to arbitration.

The record in this case clearly establishes that, during the deposition of Plaintiff Drake, Defendants questioned him for approximately one hour concerning the matters that underlie the relevant claims. The questioning of Plaintiff Drake concerning the claims which Defendants now seek to have arbitrated occupied some 48 pages of the deposition transcript. During the course of this portion of Plaintiff Drake's deposition, Defendants "prompted [Mr. Drake] to admit certain facts regarding the [claims]." Capps, 184 N.C.App. at 272, 645 S.E.2d at 829. Although the exact amount of monetary cost that Plaintiff Drake incurred during the portion of the deposition that addressed the relevant claims is not spelled out in the record, the Supreme Court's description of the showing needed in order to establish the right to arbitration by engaging in discovery does not include a cost-related component. Servomation Corp., 316 N.C. at 544, 342 S.E.2d at 854 (stating that a waiver of the right to have a claim submitted to arbitration can be waived if the party seeking arbitration "makes use of judicial discovery procedures not available in arbitration").6 Thus, we conclude that the trial court's determination that Defendants waived their right to have the relevant claims submitted to arbitration by engaging in discovery that would not have been available as a matter of right during the arbitration process has adequate support in both the trial court's findings and the record and provides adequate support for its conclusion that the Defendants waived the right to arbitration, separately from its findings regarding expense, and should, for that reason, be affirmed.

We have carefully considered, and ultimately rejected, Defendants' numerous contrary arguments. As an initial matter, Defendant contends that, by participating in the deposition and failing to move for a protective order, Plaintiff has lost the right to utilize the taking of this deposition as the basis for a claim that Defendants had waived the right to have the relevant claims submitted to arbitration. In support of this argument, Defendants rely upon the decision of the United States Court of Appeals for the Fourth Circuit in Maxum Foundations, Inc. v. Salus Corp., 779 F.2d 974 (4th Cir.1985). The issue before the Court in Maxum Foundations was not whether a party had "impliedly waived" the right to insist that one or more claims be submitted to arbitration, but whether the party was subject to statutory default under Section 3 of the Federal Arbitration Act. 9 U.S.C. § 3. Although Maxum Foundations noted that "this principle of `default' is akin to waiver," it also concluded that "the circumstances giving rise to a statutory default are limited" and declined to find that one had occurred in the case under consideration. Maxum at 981 (citation omitted). In view of the absence of any support in our own arbitration-related jurisprudence for the proposition that a party claiming that an opponent had impliedly waived the right to insist upon arbitration has a duty to explicitly object to the conduct upon which the alleged waiver is based and the fact that the issue addressed in Maxum Foundations is not identical to the one before us here, we decline to adopt a contemporaneous objection rule of the type contended for by Defendants in this case.

Secondly, Defendants contend that Plaintiffs failed to show that they had incurred the expenses associated with a long trial, lost helpful evidence, or expended significant sums of money during the litigation of the arbitrable claims as a result of Defendants' delay in seeking arbitration. Although Defendants are correct that Plaintiffs failed to make any showing relating to these three Servomation Corp. factors, the trial court was entitled to find a waiver of arbitration on the basis of Defendants' decision to question Plaintiff Drake during his deposition concerning the relevant claims without addressing these three additional criteria. As a result, this argument provides no basis for reversing the trial court's order.

Next, Defendants argue that, given that the discovery activities in which they engaged were "limited," those activities were legally "insufficient" to support the trial court's waiver determination. In support of this argument, Defendants cite Servomation Corp., 316 N.C. 543, 342 S.E.2d 853 (1986), Smith, 141 N.C. App. 469, 540 S.E.2d 383 (2000), and Sturm v. Schamens, 99 N.C. App. 207, 392 S.E.2d 432 (1990), which they contend stand for the proposition that "limited" discovery cannot be the basis for a waiver determination. However, we do not believe that these cases support Defendants' position for at least two different reasons. First, none of these cases involved a situation in which a party seeking arbitration deposed a witness concerning the allegedly arbitrable claims. Secondly, in each of these cases, the reviewing court specifically found that the party resisting arbitration had failed to establish that its opponent had made use of any discovery that would not have been available during the arbitration process. Such is not the case here. Finally, assuming that the "limited" nature of the discovery in which a party seeking to compel arbitration engages is grounds for refusing to find a waiver of arbitration, we do not believe that devoting an hour in a day-long deposition to allegedly arbitrable claims constitutes "limited discovery."7 As a result, we conclude that the trial court did not err by determining that a waiver of arbitration had occurred given the "limited" nature of the discovery-related activities in which the party seeking to compel arbitration had engaged.

In addition, Defendants argue, in reliance upon our decision in Sullivan v. Bright, 129 N.C. App. 84, 497 S.E.2d 118 (1998), that

We do not find Defendants' argument in reliance upon Sullivan persuasive.

The first problem with this aspect of Defendants' argument is that Sullivan addressed the issue of waiver in light of the specific language of former N.C. Gen.Stat. § 1-567.8(b), which provided that, "[o]n application of a party and for use as evidence, the arbitrators may permit a deposition to be taken ... of a witness who cannot be subpoenaed or is unable to attend the hearing." In Sullivan, we focused our attention on the defendant's failure to prove that the witnesses deposed by the plaintiff would have been available to appear at an arbitration hearing. Our opinion implies that, had the defendant established that these witnesses were available to appear at an arbitration hearing, such a showing would have supported a determination that the plaintiff had engaged in discovery unavailable in arbitration sufficient to support a waiver determination. This understanding of Sullivan finds support in our decision in Moose, 171 N.C.App. at 383-84, 614 S.E.2d at 423, in which we distinguished Sullivan on the grounds that, in Moose, the defendant had deposed parties who would clearly be available at an arbitration hearing:

As a result, under N.C. Gen.Stat. § 1-567.8(b) as it existed when Sullivan and Moose were decided, deposition of a party who was available to attend an arbitration hearing did work a waiver of the right to compel arbitration.

Secondly, the Uniform Arbitration Act was repealed and replaced by the Revised Uniform Arbitration Act effective 1 January 2004. Under the relevant provisions of the Revised Uniform Arbitration Act, an arbitrator has the discretionary authority to authorize depositions regardless of witness availability. As a result, unlike the situation addressed in Sullivan and Moose, the availability of depositions in arbitration does not hinge upon the extent to which a particular witness is or is not available to testify during an arbitration proceeding.

Finally, even under the former statute, depositions of unavailable witnesses were discretionary with the arbitrator. In Moose, we held that, since the deposed parties were clearly available and since this fact eliminated any possibility that the witnesses in question would be deposed during the course of an arbitration proceeding, the party seeking to compel arbitration had engaged in discovery that was not available during such proceedings. In Sullivan, we held that, because the party opposing arbitration had failed to prove that the deposed witnesses were definitely available for arbitration, there was a possibility that these witnesses might be unavailable and would, for that reason, be subject to deposition in the arbitrator's discretion. Although our holding in Sullivan could suggest, in accordance with Defendants' contention, that the mere possibility that a witness could be deposed in the arbitrator's discretion would suffice to defeat a finding of waiver, we did not include such an explicit pronouncement in our opinion in Sullivan. Moreover, we have not found such a holding in any of our published post-Sullivan decisions addressing a waiver of arbitration issue predicated upon the taking of a deposition and do not believe that such a decision would be appropriate given the absence of any guarantee that the arbitrator would allow the party seeking to compel arbitration to depose the witness in question. As a result, for all of these reasons, we conclude that Sullivan does not require reversal of the trial court's order.

Finally, Defendants argue that they should not be penalized for having deposed Plaintiff Drake given that, had they not deposed him concerning the relevant claims, they risked "losing the opportunity to depose" Plaintiff Drake unless they asked him "arbitration-related questions during the deposition[.]" However, this aspect of Defendants' argument presupposes that Plaintiff Drake's responses to their deposition questions had a material bearing on the litigation of the allegedly arbitrable claims. In addition, the record does not contain any indication that Defendants sought to have the trial court delay the deposition of Plaintiff Drake until their motion to compel arbitration had been decided or to otherwise protect their right to depose Plaintiff Drake while their motion to compel arbitration was pending. In light of these facts, we do not find this aspect of Defendants' argument persuasive either. As a result, given that "there is evidence in the record which supports the trial court's findings of fact" and given that "those findings support [the trial court's determination] that a party has waived its right to compel arbitration" by engaging in discovery that would not necessarily have been available in arbitration, we conclude that "the [trial court's] decision must be affirmed." Moose, 171 N.C.App. at 382, 614 S.E.2d at 422.

III. Conclusion

Thus, for the reasons discussed above, we hold that, even though the trial court erred by concluding that Plaintiff's claims were not encompassed within the arbitration provision contained in the Operating Agreement, it correctly determined that Defendants had waived the right to compel the submission of the relevant claims to arbitration by deposing Plaintiff Drake concerning the facts underlying the relevant claims. As a result, the trial court's order should be, and hereby is, affirmed.

AFFIRMED.

Judges CALABRIA and THIGPEN concur.