Blue Ridge Sportcycle Co., Inc. v. Schroader
| Decision Date | 04 August 1981 |
| Docket Number | No. 8028SC1122,8028SC1122 |
| Citation | 280 S.E.2d 799,53 N.C.App. 354 |
| Court | North Carolina Court of Appeals |
| Parties | BLUE RIDGE SPORTCYCLE COMPANY, INC., and John K. Jonas, Jr. v. Leonard SCHROADER and wife, Kathy Schroader, individually; SchroaderMotorcycle, Inc. d/b/a Schroader Honda-Kawasaki; Katherine J. Waldrop; LindaJanette Holcombe; Larry D. Holcombe; and Dennis J. Winner. |
Russell L. McLean, III, Waynesville, for plaintiffs-appellants.
Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant-appellee, Winner.
The threshold question before this Court, though not argued by either party, is whether an appeal lies from the summary judgment for the defendant Winner. It is established that if an appealing party has no right of appeal, an appellate court on its own motion, should dismiss the appeal even though the question of appealability has not been raised by the parties themselves. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980); Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956).
In a multiple claim or multiple party action, an appeal from a summary judgment granted for one party or on one claim is premature if the trial court does not make a determination under G.S. 1A-1, Rule 54(b) that there was no just reason for delay, unless a substantial right is involved as provided by G.S. 1-277 and G.S. 7A-27(d). Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976).
Since the trial court made no finding under Rule 54(b) that there was no just reason for delay, we must determine if plaintiffs had the statutory right of appeal under G.S. 1-277 and G.S. 7A-27(d) because a substantial right is involved. We conclude that there is no substantial right involved and that the appeal is premature.
In their first two claims for relief, plaintiffs allege that defendants Schroader, lessees, agreed to pay plaintiffs for their leasehold improvements, and that the release was executed and delivered to defendants Holcombe and Waldrop, lessors, without the knowledge and consent of plaintiffs, and that said defendants relying on said release fraudulently entered into a direct sublease with defendants Schroader with intent to defraud the plaintiffs. The third claim for relief against defendant Winner for malpractice was in the alternative, "if and in the event the Court should find that the plaintiffs should not recover and shall not recover under its claims for relief set forth under One and Two above ...."
Since plaintiffs seek to recover against defendant Winner only if they are unable to recover against the other defendants on their primary claims, the primary claims must first be determined. Only if the court determines that plaintiffs cannot recover on their primary claims can plaintiffs' right to recover from defendant Winner be affected by the summary judgment for Winner. If the plaintiffs should recover against the other defendants on either one or both of the primary claims, plaintiffs under the pleadings could not and do not seek to recover against defendant Winner for malpractice.
The summary judgment is not appealable on the theory that it affects a substantial right of the plaintiffs and will work injury to plaintiffs if not corrected before a trial and appeal from final judgment on the primary claims. If the summary judgment for defendant Winner is in error, plaintiffs can preserve their right to complain of the error by a duly entered exception, and may appeal after adverse judgment on the primary claims. If plaintiffs should recover against the other defendants on their primary claims, there would be no basis for an appeal from the summary judgment against defendant Winner; if plaintiffs do not recover on their primary claims, they may then appeal from the summary judgment. See Industries, Inc. v. Insurance Co., ...
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...that will not be in controversy if subsequently plaintiffs do recover on their primary claims." Blue Ridge Sportcycle Co. v. Schroader, 53 N.C.App. 354, 357, 280 S.E.2d 799, 801 (1981); see also Kirkman v. Wilson, 328 N.C. 309, 312, 401 S.E.2d 359, 361 (1991) (vacating the Court of Appeals ......
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...to dismissal unless the order affected a substantial right as provided by G.S. 1-277 and G.S. 7A-27(d). Sportcycle Co. v. Schroader, 53 N.C.App. 354, 356, 280 S.E.2d 799, 800-01 (1981). In this case, however, the Bank has alerted this Court to the fact that it has filed a separate appeal fr......
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