Azalea Garden Bd. & Care Inc v. Vanhoy
| Decision Date | 04 January 2011 |
| Docket Number | No. 06 CVS 0948,NO. COA09-1119,COA09-1119,06 CVS 0948 |
| Court | North Carolina Court of Appeals |
| Parties | AZALEA GARDEN BOARD & CARE, INC., Plaintiff, v. MEREDITH DODSON VANHOY, Personal Representative of the Estate of Ricky C. Dodson, Deceased; LARRY S. GIBSON, NINA G. GIBSON, DANIEL W. TUTTLE; TIMOTHY D. SMITH; and HARVEY ALLEN, JR., Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by plaintiff from order entered 19 March 2009 by Judge Ben F. Tennille in Davidson County Superior Court. Heard in the Court of Appeals 9 February 2010.
Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker and Christopher Alan Raines, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James C. Adams, II and Benjamin R. Norman, for Allen, defendant-appellee.
Spilman, Thomas & Battle, PLLC, by Nathan B. Atkinson and Edward T. Shipley, III, for Tuttle, defendant-appellee.
Azalea Garden Board & Care, Inc. ("plaintiff") appeals the trial court's 19 March 2009 orders granting summary judgment in favor of defendant Harvey Allen, Jr. ("Allen") and partial summary judgment in favor of defendant Daniel W. Tuttle ("Tuttle"). For the reasons stated herein, we affirm.
Allen is a medical doctor, who worked as a physician for a nursing home managed by Nina Gibson and Larry Gibson (collectively, "the Gibsons"). Plaintiff owned the Brookside of Winston-Salem Rest Home ("Brookside") and decided to sell it. In late 1998, Allen and the Gibsons attempted to purchase Brookside. In December 1998, Allen, Allen's wife, and the Gibsons purchased a parcel of property that adjoins Brookside. However, negotiations as to Brookside "broke down[,]" and the sale of Brookside did not take place.
(Original in all capital letters). The only signatories to the contract were plaintiff, Nina Gibson, Smith, and the real estate broker Ricky Dodson ("Dodson"); however, plaintiff alleges that Smith and Nina Gibson signed it on behalf of a group of buyers, including Allen and Tuttle.
Branch Banking and Trust Co. ("BB&T") handled the loan for the purchase of Brookside. Dodson provided BB&T with the names of Allen, Smith, the Gibsons, and Tuttle. BB&T reviewed several personal financial statements, including Allen's, and sent a commitment letter dated 7 May 1999 that listed Dodson, Tuttle, Smith, the Gibsons, and Allen as "Co-Makers/Guarantors" of the loan. According to Allen, BB&T had access to his personal financial statement because he had provided it in conjunction with a prior failed attempt to purchase Brookside. Allen also stated that he had not given Dodson the authority to handle or direct the use of Allen's bank documents.
In July 1999, the parties entered into a modification of the contract, which was signed by plaintiff, Nina Gibson, Smith, and Dodson. The parties were to close on Brookside on or before 31 August 1999. However, the closing never took place.
WRH Mortgage, Inc. held a secured claim of approximately $3,700, 000.00 against plaintiff. According to plaintiff, on or about 7 September 1999, WRH Mortgage had agreed to accept $3,275, 521.00 in satisfaction of the claim.
In a letter dated 13 September 1999, plaintiff informed Dodson, the Gibsons, Tuttle, and Allen that it "considers the buyers at this time to be in breach of their contract and requests that steps be taken to cure this breach, avoid the potential of losses on the part of the seller and schedule closing of this transaction immediately." In a letter dated 14 September 1999, an attorney for the buyer group responded that, "since there has beenno written extension and due to [plaintiff's] inability to convey good and marketable title on August 31, 1999, we have advised our clients that the contract no longer has any force or effect."
On 21 March 2006, plaintiff filed a breach of contract action against Meredith Dodson Vanhoy ("Vanhoy"), as personal representative of the estate of Ricky Dodson, deceased; the Gibsons; Tuttle; Smith; and Allen. The complaint alleged, in part, that Nina Gibson and Smith had signed the contract and subsequent modification "on their own behalf and in their capacities as co-adventurers with defendants and in the course and scope and furtherance of the joint venture or apparent joint venture." It also alleged that "plaintiff was damaged in the amount of $589,565.43, which is the net revenue plaintiff would have realized had [Brookside] been purchased as provided pursuant to the contract[.]"
On 13 August 2007, Vanhoy filed a motion for summary judgment, on which the trial court heard evidence and arguments. The trial court subsequently granted summary judgment in favor of Vanhoy on 7 March 2008 and dismissed the breach of contract claim against her. We affirmed the trial court's order in Azalea Garden Bd. & Care, Inc. v. Vanhoy, 196 N.C. App. 376, 675 S.E.2d 122 (2009) (Azalea I). Therefore, Vanhoy is no longer a party to this action.
On 28 March 2008, Allen moved for summary judgment. On 2 April 2008, Tuttle moved for summary judgment. On 19 March 2009, the trial court filed two separate orders: one granted partial summary judgment in favor of Tuttle, concluding in part that, "[p]ursuant to [p]aragraph 12 of the [c]ontract, [p]laintiff's damages are limited to $12,500 — fifty (50) percent of the $25,000 earnest money deposited with the broker[;]" and the other granted summary judgment in favor of Allen, concluding that "[p]laintiff's claim is barred by the Statute of Frauds." Plaintiff appeals.
Initially, we address plaintiff's stated grounds for appellate review. Plaintiff contends that, notwithstanding the interlocutory nature of this appeal, we should review the merits of its case based upon the potential denial of a substantial right. Specifically, "[i]f an immediate appeal is not permitted, [plaintiff] will lose the substantial right to have common issues tried in a single trial instead of separate trials" and "will be subject to the possibility that it will be 'prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.'" (Citations omitted).
"An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (citing Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231 (1916)), reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Ordinarily, an interlocutory order is not immediately appealable. Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, one exception from this rule is when "such order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appealfrom the final judgment." Veazey, 231 N.C. at 362, 57 S.E.2d at 381 (citations omitted); see also N.C. Gen. Stat. § 1-277(a) (2007) ().
Our Supreme Court has held "that the right to avoid the possibility of two trials on the same issues can be such a substantial right." Joslyn v. Blanchard, 149 N.C. App. 625, 627, 561 S.E.2d 534, 535-36 (2002) (quoting Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982)) (internal quotation marks omitted).
This general proposition is based on the following rationale: when common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn "creates the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue."
Id. at 627, 561 S.E.2d at 536 (quoting Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25, 376 S.E.2d 488, 491, disc. rev. denied, 324 N.C. 577, 381 S.E.2d 772 (1989)).
Here, the trial court's orders did not dispose of the entire case, and therefore, the appeal is interlocutory. Nonetheless, if plaintiff were to succeed in its appeal, Allen would rejoin defendants as a party to the action and a jury would be permitted to consider evidence of plaintiff's damages beyond the $12,500.00 represented by its half of the earnest money deposit. As in Azalea I, a subsequent trial would involve both the same key issues and "the consideration and resolution of a common set of facts." 196 N.C. App. at 385, 675 S.E.2d at 128. Because, absent an immediate appeal, there exists a possibility of two trials addressing the same issues and yet resulting in different outcomes, the instant case involves a substantial right. Therefore, we address the merits of plaintiff's contentions.
Plaintiff first argues that the trial court erred in granting summary judgment in favor of Allen, because there exists a genuine issue of material fact as to whether Allen was a participant in a joint venture. We disagree.
We review a trial court's grant of summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006) (c...
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