Bruggeman v. Meditrust Co., LLC

• Decision Date: 17 August 2004
• Docket Number: No. COA03-944.,COA03-944.
• Citation: 165 NC App. 790,600 S.E.2d 507
• Parties: Michael BRUGGEMAN, Plaintiff, v. MEDITRUST COMPANY, LLC and Meditrust Golf Group II, Inc., Defendants.
• Court: North Carolina Court of Appeals

600 S.E.2d 507

165 NC App. 790

Michael BRUGGEMAN, Plaintiff, v. MEDITRUST COMPANY, LLC and Meditrust Golf Group II, Inc., Defendants.

No. COA03-944.

Court of Appeals of North Carolina.

August 17, 2004.

Johnson, Lambeth & Brown, by Robert White Johnson, Esquire, and Anna Johnson Averitt, Esquire, Wilmington, for intervenors-appellees Newton and McGonigal.

Ward & Smith, P.A., by George K. Freeman, Jr., Esquire, Wilmington, for defendants-appellants.

TIMMONS-GOODSON, Judge.

Meditrust Company, LLC ("MCLLC") and Meditrust Golf Group II, Inc., ("MGG") (collectively, "defendants") appeal the trial court's order granting the motion to intervene filed by Jackson Newton ("Newton") and Mark McGonigal ("McGonigal"). For the reasons discussed herein, we vacate the trial court's order and remand the case.

This case is before this Court for the third time. The case involves efforts on the part of three real estate brokers, including one from North Carolina, to recover over $1,000,000 in sales commissions allegedly owed to them by a Delaware-headquartered property acquisition group. The facts and procedural history pertinent to the instant appeal are as follows: Michael Bruggeman ("Bruggeman"), Newton, and McGonigal (collectively, "plaintiffs") originally filed this action alleging a contract with Media Acquisition Company ("MAC") and MCLLC and asserting entitlement to a commission for locating certain properties purchased by defendants. According to plaintiffs' complaint, in late 1997 or early 1998, McGonigal, a licensed real estate broker in New Jersey, was contacted by MAC to assist defendants in the acquisition of golf course properties. McGonigal subsequently engaged Bruggeman, a licensed real estate broker in Maryland and Virginia, to assist him in representing defendants.

In January 1998, Bruggeman met with Abe Grossman ("Grossman"), President of MAC. At that time, MAC was a Florida corporation with offices in Florida. Grossman informed Bruggeman that MAC was interested in acquiring golf course properties in North Carolina. MAC subsequently merged with MCLLC, a Delaware corporation with offices in Florida, and Bruggeman subsequently contacted Newton, a resident of and licensed real estate broker in North Carolina. Bruggeman, McGonigal, and Newton then "formed a joint venture to provide services to [defendants] in any state where any one of [plaintiffs] was allowed to act as a real estate broker."

Soon after forming the joint venture, plaintiffs "brought several prospects to [defendants,] including Carolina Golf Services and its executive officer, Stuart Frantz." Carolina Golf Services ("Carolina Golf") was a North Carolina business that, according to plaintiffs' complaint, owned Devils Ridge Golf Club, Kiskiack Golf Club, Lochmere Golf Club, Nags Head Golf Links, The Currituck Club, The Neuse Golf Club, and the Oak Valley Golf Club (collectively, "the properties"), all of which are located in North Carolina. After obtaining information for defendants regarding the properties and facilitating and participating in meetings aimed at purchasing the properties, plaintiffs "assisted [defendants] in procuring certain golf course assets of Carolina Golf Services in the State of North Carolina at a price which, upon information and belief, exceeds forty million dollars." Plaintiffs claim that defendants then "excluded" plaintiffs from subsequent transactions regarding the properties, and, as a result, plaintiffs "did not receive any commission for the services they performed." Plaintiffs allege that they are entitled to "a reasonable commission of $1,320,000, which is three percent of the total purchase price of $44,000,000."

Plaintiffs subsequently amended their complaint to add MGG as a party. MGG was a Delaware corporation with offices in Massachusetts. According to plaintiffs, MAC acted on behalf of MCLLC and MGG, and either MCLLC or MGG, using the information provided by plaintiffs to MAC, actually purchased the properties.

On 24 May 2002, defendants moved to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and to dismiss Newton and McGonigal for lack of standing. In an order entered 12 September 2002, New Hanover County Superior Court Judge W. Allen Cobb ("Judge Cobb") refused to dismiss the case for lack of subject matter jurisdiction but dismissed Newton and McGonigal for lack of standing. On 1 October 2002, Newton and McGonigal filed a Motion to Intervene and More Definitive Complaint, both of which requested that Newton and McGonigal be allowed to intervene in the matter. On 3 October 2002, defendants moved Judge Cobb to amend the 12 September 2002 order to be certified as a final judgment as to fewer than all the parties. On 10 October 2002, Judge Cobb denied defendants' motion to certify the 12 September 2002 judgment.

Defendants appealed the denial of certification and the denial of the motion to dismiss for lack of subject matter jurisdiction to this Court. In Bruggeman v. Meditrust Co., 161 N.C.App. 347, 588 S.E.2d 585 (2003) (unpublished) ("Bruggeman II"), this Court dismissed defendants' appeal as interlocutory and affirmed Judge Cobb's ruling denying defendants' motion to certify the judgment.

While Bruggeman II was pending on appeal, New Hanover County Superior Court Judge Kenneth Crow ("Judge Crow") heard Newton and McGonigal's motion to intervene and a motion to stay filed by defendants. Judge Crow took the motions under advisement and, on 10 January 2003, announced in a proposed decision that the trial court would grant Newton and McGonigal's motion to intervene. On 16 January 2003, defendants filed a motion for a fact finding order, pursuant to N.C. Gen.Stat. § 1A-1, Rule 52 (2003). On the same date, defendants filed a second motion to stay and a motion to certify the order permitting intervention for immediate appeal.

On 24 January 2003, Newton and McGonigal filed an "Intervenors' Complaint." On 7 February 2003, defendants filed a motion to rehear the motions to intervene and to stay, a motion to strike the purported intervenors' complaint, and a motion to stay if the intervenors' motion to intervene was in fact granted. On 19 February 2003, all of the pending motions were brought before Judge Crow.

On 8 April 2003, based upon the allegations contained in Newton and McGonigal's purported intervenors' complaint, Judge Crow granted Newton and McGonigal's motion to intervene. Judge Crow stated that the order "in effect overrul[ed] or circumvent[ed]" Judge Cobb's previous order dismissing Newton and McGonigal for lack of standing. Accordingly, Judge Crow certified that the order was immediately appealable. It is from this order that defendants appeal.

We note initially that, in their brief, Newton and McGonigal move this Court to dismiss defendants' appeal. "Motions to an appellate court may not be made in a brief but must be made in accordance with N.C.R.App. P. 37." Horton v. New South Ins. Co., 122 N.C.App. 265, 268, 468 S.E.2d 856, 858, disc. review denied and cert. denied, 343 N.C. 511, 472 S.E.2d 8 (1996). Therefore, we limit our present review only to those issues properly preserved by the parties for appeal.

The only issue on appeal is whether Judge Crow erred by granting Newton and McGonigal's motion to intervene. Because we conclude that Judge Crow erred, we vacate the 8 April 2003 order and remand the case for further proceedings.

N.C. Gen.Stat. § 1-294 (2003) provides as follows:

When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

Thus, a trial court is considered functus officio while an issue is appealed to this Court, and the trial court is generally without jurisdiction to issue an order in the case while the appeal is pending. Carpenter v. Carpenter, 25 N.C.App. 307, 309, 212 S.E.2d 915, 916 (1975). However, as discussed above, in the instant case, defendants appealed the following two issues to this Court on 11 October 2002:(i) Judge Cobb's denial of defendants' motion to dismiss the action for lack of subject matter jurisdiction; and (ii) Judge Cobb's denial of defendants' motion to certify as a final judgment the order dismissing Newton and McGonigal for lack of standing. In Bruggeman II, this Court dismissed as interlocutory the issue of whether Judge Cobb erred in denying defendants' motion to dismiss for lack of subject matter jurisdiction. We also affirmed Judge Cobb's decision not to certify as a final judgment the previous order dismissing Newton and McGonigal for lack of standing. Nevertheless, while Bruggeman II was pending before this Court, Judge Crow granted Newton and McGonigal's motion to intervene. In light of N.C. Gen.Stat. § 1-294 and the cases that interpret it, we conclude Judge Crow erred.

We recognize that in Bruggeman II this Court dismissed as interlocutory defendants' appeal of the denial of defendants' motion to dismiss for lack of subject matter jurisdiction, and we note that it is well established that where an appeal is interlocutory, the trial court need not stay its proceedings while an appellate court decides the appeal. Veazey v. Durham, 231 N.C. 354, 357, 57 S.E.2d 375, 377 (1950); Onslow County v. Moore, 129 N.C.App. 376, 387-88, 499 S.E.2d 780, 788, disc. review denied, 349 N.C. 361, 525 S.E.2d 453 (1998). However, we also recognize that in Bruggeman II, this Court affirmed Judge Cobb's denial of defendants' motion to certify as a final judgment the order dismissing Newton and McGonigal for lack of standing. Had this Court decided instead to reverse the trial court's order, the previous order dismissing Newton and McGonigal for lack of standing would have been certified as a final judgment against Newton and McGonigal's claims. N.C. Gen. Stat. § 1A-1, Rule 54 (20...