CBP RESOURCES v. MOUNTAIRE FARMS OF NC

Decision Date06 July 1999
Docket NumberNo. COA98-1169.,COA98-1169.
Citation517 S.E.2d 151,134 NC App. 169
PartiesCBP RESOURCES, INC., Plaintiff-Appellee, v. MOUNTAIRE FARMS OF NORTH CAROLINA, INC., Mountaire Corporation, Mountaire Farms of Delmarva, Inc., Mountaire Feeds, Inc., Mountaire Farms, L.L.C., Defendant-Appellants, and Piedmont Poultry Processing, Inc., f/k/a Lumbee Farms Cooperative, Inc., Piedmont Poultry Company, Inc., Piedmont Feed Mills, Inc., Piedmont Poultry Farms, Inc. and Piedmont Hatcheries, Inc., Defendants.
CourtNorth Carolina Court of Appeals

Smith Helms Mulliss & Moore, L.L.P., by Larry B. Sitton and Manning A. Connors, Greensboro, for plaintiff-appellee.

Jordan, Price, Wall, Gray & Jones, L.L.P., by Henry W. Jones, Jr. and Laura J. Wetsch; and Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by James T. Williams, Jr. and S. Kyle Woosley, Raleigh, for Mountaire defendants-appellants.

WALKER, Judge.

Plaintiff CBP Resources, Inc. (CBP) filed this action on 12 December 1996, alleging breach of contract against Mountaire Farms of North Carolina, Inc., Mountaire Corporation, Mountaire Farms of Delmarva, Inc., Mountaire Feeds, Inc., and Piedmont Poultry Processing, Inc. f/k/a Lumbee Farms Cooperative, Inc. CBP later amended its complaint to include defendants Mountaire Farms, L.L.C., Piedmont Poultry Company, Inc., Piedmont Feed Mills, Inc., Piedmont Poultry Farms, Inc., and Piedmont Hatcheries, Inc. The Mountaire defendants filed a joint answer to the amended complaint. The Piedmont defendants have not filed any pleading and have not made an appearance in this matter.

CBP's claims arise from a contract made 29 January 1988 between CBP and Lumbee Farms Cooperative in which Lumbee agreed to sell the by-products of its poultry processing operations at its plant in Lumber Bridge, North Carolina to CBP. Lumbee was subsequently purchased by the Piedmont defendants which assumed the contract with CBP. In January 1996, Mountaire Farms of North Carolina, Inc. entered into an asset purchase agreement with the Piedmont defendants wherein it agreed to purchase certain assets including the Lumber Bridge plant. CBP alleges that Mountaire is bound by the contract to sell its poultry by-products to CBP. Mountaire contends that it did not expressly or impliedly assume the contract in the asset purchase agreement.

CBP filed a motion for partial summary judgment on the issue of liability, which was heard by the trial court on 7 May 1998. The trial court granted partial summary judgment for CBP and noted the following in its order:

The Plaintiff's claims and the Defendants' affirmative defenses are so intertwined with the question of damages that a fair adjudication of these issues cannot be had without a contemporaneous presentment of the other, so that the substantial rights of these Defendants are affected, and immediate appeal pursuant to N.C. Gen.Stat. § 1-277 is warranted.
There is no just reason to delay appeal of this matter, and this matter is therefore certified for immediate appeal pursuant to Rule 54(b);....

We must first consider the issue of whether this appeal is properly before the Court. See Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980). The trial court granted partial summary judgment for the plaintiff only on the issue of liability. "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C.App. 730, 733, 460 S.E.2d 332, 334 (1995). The rule against interlocutory appeals seeks to prevent fragmentary, premature and unnecessary appeals by allowing the trial court to bring a case to final judgment before its presentation to the appellate courts. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C.App. 521, 523, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); N.C. Gen.Stat. § 1-277 (1996); N.C. Gen.Stat. § 7A-27 (1995).

However, a Rule 54(b) certification is effective to certify an otherwise interlocutory appeal only if the trial court has entered a final judgment with regard to a party or a claim in a case which involves multiple parties or multiple claims. See DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583, 500 S.E.2d 666 (1998). Rule 54(b) certification of an appeal is reviewable by this Court "because the trial court's denomination of its decree `a final ... judgment does not make it so,' if it is not such a judgment." First Atlantic Management Corp. v. Dunlea Realty Co., 131 N.C.App. 242, 247, 507 S.E.2d 56, 60 (1998)(quoting Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979)) (citations omitted). Thus, we must determine whether the partial summary judgment entered in favor of CBP was final or, in the alternative, whether a substantial right of the defendants will be affected absent immediate appellate review.

"A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950). In this case, plaintiffs moved for summary judgment on the issue of liability; however, plaintiff's counsel admitted at the motion hearing that there were issues of material fact regarding damages which made it unsuitable for summary judgment. Because the issue of damages remains to be determined by the trial court, this is not a final judgment and the trial court's Rule 54(b) certification is ineffective. See, e.g., Cagle v. Teachy, 111 N.C.App....

To continue reading

Request your trial
28 cases
  • Wolfe v. Villines
    • United States
    • North Carolina Court of Appeals
    • April 5, 2005
    ...there is no risk of inconsistent verdicts to trigger a preemptive review by this Court. CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C.App. 169, 172, 517 S.E.2d 151, 154 (1999) ("the issue of liability has been determined, [and] the only remaining issue is that of damages and......
  • Woody v. Vickrey
    • United States
    • North Carolina Court of Appeals
    • April 6, 2021
    ...54(b) or (2) if the trial court's decision deprives the appellant of a substantial right ...." CBP Resources, Inc. v. Mountaire Farms, Inc. , 134 N.C. App. 169, 171, 517 S.E.2d 151, 153 (1999) (quotations omitted). An appellant's substantial right is deprived if it is "lost, prejudiced or [......
  • KNC Technologies, LLC v. Tutton, 19 CVS 793
    • United States
    • Superior Court of North Carolina
    • October 9, 2019
    ... ... them in the trial court." CBP Resources, Inc. v ... Mountaire Farms, Inc., 134 N.C.App. 169, 171, 517 S.E.2d ... 151, 154 (1999) ... ...
  • High Rock Lake Partners LLC v. North Carolina Dep't Of Transp.
    • United States
    • North Carolina Court of Appeals
    • May 18, 2010
    ...regard to a party or a claim in a case which involves multiple parties or multiple claims.” CBP Res., Inc. v. Mountaire Farms of N.C., Inc., 134 N.C.App. 169, 171, 517 S.E.2d 151, 153-54 (1999) (emphasis added). The order in this case does not involve, as required by Rule 54(b), a final jud......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT