First Atlantic v. Dunlea Realty

• Decision Date: 03 November 1998
• Docket Number: No. COA97-540.,COA97-540.
• Citation: 131 NC App. 242,507 S.E.2d 56
• Parties: FIRST ATLANTIC MANAGEMENT, CORPORATION, Plaintiff, v. DUNLEA REALTY, CO., H. Steven Harris, and Jeffrey L. Dunlea, Defendants.
• Court: North Carolina Court of Appeals

507 S.E.2d 56

131 NC App. 242

FIRST ATLANTIC MANAGEMENT, CORPORATION, Plaintiff, v. DUNLEA REALTY, CO., H. Steven Harris, and Jeffrey L. Dunlea, Defendants.

No. COA97-540.

Court of Appeals of North Carolina.

November 3, 1998.

Ward and Smith, P.A. by Shelli Stoker Stillerman and John M. Martin, Greenville, for plaintiff-appellant.

Shanklin & McDaniel, L.L.P. by Kenneth A. Shanklin and Susan McDaniel, Wilmington, for defendants-appellees.

JOHN, Judge.

Plaintiff appeals the trial court's denial of its motion for partial summary judgment and allowance of defendants' motion for partial summary judgment on plaintiff's claim of unfair and deceptive trade practices. Defendants appeal denial of their motion for partial summary judgment alleging res judicata, and denial of their motion to strike certain affidavits offered by plaintiff. We reverse the trial court's grant of partial summary judgment to defendants and dismiss the remaining appeals.

Pertinent facts and procedural history include the following: In October 1994, James A. Holmes, III (Holmes) and F. Spruill Thompson (Thompson), officers and directors of plaintiff First Atlantic Management Corporation (First Atlantic), began negotiations with defendant Dunlea Realty Company (Dunlea Realty), acting through defendant H. Steven Harris (Harris), for the purchase of certain Dunlea Realty assets. The latter comprised property management accounts (the accounts) consisting of the right to receive payment from owners of rental property in exchange for management services.

On 23 February 1995, First Atlantic and Dunlea Realty entered into an Offer to Purchase and Contract regarding the accounts. Although a 28 February 1995 closing date was originally agreed upon, closing in actuality took place 4 April 1995. At that time, an Acquisition Agreement (Agreement) was executed, which included a listing of the accounts being sold to First Atlantic.

However, shortly before 4 April 1995, Harris was contacted by Ed Taylor (Taylor), president of Property Management Incorporated (PMI), a competitor of Dunlea Realty. During a 3 April 1995 telephone conversation, Taylor informed Harris that certain of the accounts desired to engage the services of PMI. Harris requested that information concerning the affected accounts be telefaxed to his office. However, Harris did not reveal to representatives of First Atlantic that some of the accounts involved in the asset sale were seeking to secure other property management services.

Several hours following conclusion of the closing on 4 April 1995 and after receiving a telefax list of accounts transferring to PMI, Harris went to plaintiff's offices and disclosed the pending loss of certain accounts including, according to plaintiff, "the Abee Account which ... represented a substantial amount of the monthly revenues of the entire property management accounts."

On 3 May 1995, plaintiff filed suit alleging breach of contract, fraudulent misrepresentation and nondisclosure, and unfair and deceptive trade practices. Plaintiff thereafter moved for partial summary judgment on the issue of unfair and deceptive trade practices. The trial court denied the motion, and plaintiff voluntarily dismissed its action without prejudice on 3 April 1996.

Plaintiff reinstituted suit 25 April 1996 alleging breach of contract, fraudulent misrepresentation and nondisclosure, and unfair and deceptive trade practices under N.C.G.S. § 75-1.1 (1994). Plaintiff again moved for partial summary judgment on its claim of unfair and deceptive trade practices. Defendants in turn moved for summary judgment on the issue of unfair and deceptive trade practices, sought summary judgment predicated upon res judicata, and moved to strike certain affidavits relied upon by plaintiff in its motion.

In an order filed 6 March 1997, the trial court denied plaintiff's motion as well as that of defendants predicated upon res judicata, and further denied defendants' motion to strike. However, the court granted defendants' motion for partial summary judgment on plaintiff's claim of unfair and deceptive trade practices.

The court's order further provided that, upon plaintiff's motion, "this Order is hereby... certified for immediate appeal" pursuant to N.C.G.S. § 1A-1, Rule 54(b) (1990) (Rule 54(b) certification). Plaintiff and defendants thereafter filed timely appeals to this Court on 12 March 1997 and 18 March 1997 respectively.

I.

Although the parties do not raise the issue, we must first consider sua sponte whether the parties' appeals are properly before this Court. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) ("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"). We do so in the spirit of attempting "to eliminate the unnecessary delay and expense of repeated fragmentary appeals." Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951). As our Supreme Court has observed,

[t]here is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.

Veazey v. Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950).

The trial court's order fails to resolve all issues between all parties and thus is not a final judgment, id. at 361-62, 57 S.E.2d at 381 (final judgment "disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court"), but rather is interlocutory. See N.C.R. Civ. P. 54(a) (1990); Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (order which does not completely dispose of case, such as order granting or denying motion for partial summary judgment, is interlocutory).

Interlocutory orders are ordinarily not directly appealable, see Liggett, 113 N.C.App. at 23,

437 S.E.2d at 677, but may be so in two instances:

[f]irst, an interlocutory order can be immediately appealed if the order is final as to some but not all of the claims ... and the trial court certifies there is no just reason to delay the appeal [pursuant to N.C.R. Civ. P. 54(b) ]. Second, an interlocutory order can be immediately appealed under N.C. Gen.Stat. § 1-277(a)(1983) and 7A-27(d)(1)(1995) "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, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted).

Rule 54(b) certification by the trial court is reviewable by this Court on appeal in the first instance because the trial court's denomination of its decree "a final ... judgment does not make it so," Tridyn Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979), if it is not such a judgment. Similarly, the trial court's determination that "there is no just reason to delay the appeal," while accorded great deference, see DKH Corp. v. Rankin-Patterson Oil Co., Inc., 348 N.C. 583, 500 S.E.2d 666, 668 (1998),

cannot bind the appellate courts because "ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court." See Estrada v. Jaques, 70 N.C.App. 627, 640, 321 S.E.2d 240, 249 (1984), and McNeil v. Hicks, 111 N.C.App. 262, 264, 431 S.E.2d 868, 869 (1993),

disc. review denied, 335 N.C. 557, 441 S.E.2d 118 (1994) (Rule 54(b) certification "is not dispositional when the order appealed from is interlocutory").

Further,

denial of a motion for summary judgment is not a final judgment and is generally (unless affecting a "substantial right") not immediately appealable, even if the trial court has attempted to certify it for appeal under Rule 54(b).

Cagle v. Teachy, 111 N.C.App. 244, 247, 431 S.E.2d 801, 803 (1993) (citations omitted). Accordingly, denial of a motion for summary judgment is not appealable unless a substantial right of one of the parties would be prejudiced should the appeal not be heard prior to final judgment. See Equitable Leasing Corp. v. Myers, 46 N.C.App. 162, 164, 265 S.E.2d 240, 242,

disc. review denied and appeal dismissed, 301 N.C. 92 (1980).

Similarly, denial of a motion to strike is interlocutory and not a final judgment. See Veazey, 231 N.C. at 361-62,

57 S.E.2d at 381, and Liggett, 113 N.C.App. at 23,

437 S.E.2d at 677. Denial of such motion thus is properly appealable only if it "deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett, 124 N.C.App. at 524,

477 S.E.2d at 695. A right is substantial "only when it `will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Brown v. Brown, 77 N.C.App. 206, 208, 334 S.E.2d 506, 508 (1985),

disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986) (quoting Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 335, 299 S.E.2d 777, 780 (1983)).

In the case sub judice, plaintiff and defendants have each appealed the trial court's denial of their respective summary judgment motions. Defendants likewise have appealed the denial of their motion to strike certain affidavits from plaintiff's summary judgment motion. In each instance, the order appealed from is interlocutory and the trial court's Rule 54(b) certification is ineffective as to each because it cannot by certification make its decree "immediately appealable [if] it is not a final judgment." Lamb v. Wedgewood South Corp., 308 N.C. 419, 425, 302 S.E.2d 868, 871 (1983); see also Industries, 296 N.C. at 491, 251 S.E.2d at 447. These appeals thus are not properly before this Court unless a substantial right has been affected. See Cagle, 111 N.C.App. at 247,

431 S.E.2d at 803.

As to denial of the parties' summary judgment motions, our thorough examination and consideration...