Ford v. Mann

• Decision Date: 05 January 2010
• Docket Number: No. COA09-677.,COA09-677.
• Citation: 690 S.E.2d 281
• Parties: Phyllis FORD, George S. Bason, Jr., Anthony J. D'Anna, Sandra Bason, Barbara D'Anna, James Liddle, Ed Morrah, Peta Clayton, Brad Clayton, Carol K. Norton, Robert O. Everett, Barbara Everett, Dennis Andrews, Janet R. Andrews, James Goodson, Jamie Goodson, Charles M. Princell, Ernest W. Crawford, Wendy S. Taylor, Evelyn Ball, R.T. Ball, Paula S. Hall, Mark A. Rumley, Cathy K. Rumley, James R. McAdams, Ann Trollinger, Stan Morgan, Pat Morgan, J. Michael Ellis, Eleanor Thompson, Gwen Hoyt, James K. Pruitt, G.D. Dodson, Jr., Myles S. Beaman, Carolyn M. Beaman, Marie B. Chavis, Warner L. Chavis, Jr., Marylin S. Savery, Rex T. Savery, Jr., Andrew L. Pryce, Rebecca A. Pryce, Wilbur Suggs, Howard M. Malinski, Harold Ayscue, Marvin Raye McIntyre, Patricia McIntyre, Mary Ann Lake, Charles E. Lake, Amos Fisher, Vicky Frye, Jean Pruitt, Ronald Witherby, Lois Witherby, Russell Johnson, Beth Johnson, Thomas Glenn, Emily T. Ayscue, Tommy Loy, Sheila Loy, Virginia Gail Miller, Ralph Wadlinger, Linda Higgins, Mary Lee Malinski, Ronald W. Sorrell, Richard Hatcher, Betty Hatcher, Ingsborg Warschkow, Ronald Lee Norton, Jacqueline Headen, Wade L. Headen, Tina Wallace, Duncan Wallace, Patricia Lorenz, Patricia S. Gumula, Michael G. Gumula, Janet Nave, Edward Macheski, Vicki Coon, Doug Coon, L.G. Younts, William H. Ritter, Emily Ayscue, U. Dean Hall, Bennie Hall, and Jeffrey D. Hall, Plaintiffs, v. Will C. MANN, Virginia M. Mann, Open Golf Center, LLC, Cedar Forest Associates I, LLC, Cedar Forest Associates II, LLC, Euliss, Inc., Tar Heel Land Group, LLC, SunTrust Bank, VantageSouth Bank, Capital Bank, as successor to Financial First Federal Savings Bank, and Jihhad Libbus, Piedmont Crescent Country Club, Inc., and The Town of Swepsonville, North Carolina, a North Carolina municipal corporation, Defendants.
• Court: North Carolina Court of Appeals

690 S.E.2d 281

Phyllis FORD, George S. Bason, Jr., Anthony J. D'Anna, Sandra Bason, Barbara D'Anna, James Liddle, Ed Morrah, Peta Clayton, Brad Clayton, Carol K. Norton, Robert O. Everett, Barbara Everett, Dennis Andrews, Janet R. Andrews, James Goodson, Jamie Goodson, Charles M. Princell, Ernest W. Crawford, Wendy S. Taylor, Evelyn Ball, R.T. Ball, Paula S. Hall, Mark A. Rumley, Cathy K. Rumley, James R. McAdams, Ann Trollinger, Stan Morgan, Pat Morgan, J. Michael Ellis, Eleanor Thompson, Gwen Hoyt, James K. Pruitt, G.D. Dodson, Jr., Myles S. Beaman, Carolyn M. Beaman, Marie B. Chavis, Warner L. Chavis, Jr., Marylin S. Savery, Rex T. Savery, Jr., Andrew L. Pryce, Rebecca A. Pryce, Wilbur Suggs, Howard M. Malinski, Harold Ayscue, Marvin Raye McIntyre, Patricia McIntyre, Mary Ann Lake, Charles E. Lake, Amos Fisher, Vicky Frye, Jean Pruitt, Ronald Witherby, Lois Witherby, Russell Johnson, Beth Johnson, Thomas Glenn, Emily T. Ayscue, Tommy Loy, Sheila Loy, Virginia Gail Miller, Ralph Wadlinger, Linda Higgins, Mary Lee Malinski, Ronald W. Sorrell, Richard Hatcher, Betty Hatcher, Ingsborg Warschkow, Ronald Lee Norton, Jacqueline Headen, Wade L. Headen, Tina Wallace, Duncan Wallace, Patricia Lorenz, Patricia S. Gumula, Michael G. Gumula, Janet Nave, Edward Macheski, Vicki Coon, Doug Coon, L.G. Younts, William H. Ritter, Emily Ayscue, U. Dean Hall, Bennie Hall, and Jeffrey D. Hall, Plaintiffs, v. Will C. MANN, Virginia M. Mann, Open Golf Center, LLC, Cedar Forest Associates I, LLC, Cedar Forest Associates II, LLC, Euliss, Inc., Tar Heel Land Group, LLC, SunTrust Bank, VantageSouth Bank, Capital Bank, as successor to Financial First Federal Savings Bank, and Jihhad Libbus, Piedmont Crescent Country Club, Inc., and The Town of Swepsonville, North Carolina, a North Carolina municipal corporation, Defendants.

No. COA09-677.

Court of Appeals of North Carolina.

January 5, 2010.

Appeal by plaintiffs from order entered 15 December 2008 by Judge Abraham Penn Jones in Alamance County Superior Court. Heard in the Court of Appeals 4 November 2009.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Derek J. Allen and Andrew T. Tripp, Greensboro, for plaintiff-appellants.

Horack, Talley, Pharr & Lowndes, P.A., by Robert B. McNeill and Zipporah B. Edwards, Charlotte, for defendant-appellees Tar Heel Land Group, LLC, VantageSouth Bank, and SunTrust Bank.

Sparrow Wolf & Dennis, P.A., by Donald G. Sparrow, James A. Gregorio, Greensboro, and J. Michael Thomas, for defendant-appellees Euliss, Inc. and SunTrust Bank.

STEELMAN, Judge.

Where the trial court dismissed plaintiffs' claims as to only the Euliss defendants and struck plaintiffs' notice of lis pendens only as to the Euliss defendants' property, the order is interlocutory. Since plaintiffs failed to demonstrate that the order affected a substantial right, this appeal must be dismissed.

I. Factual and Procedural Background

On 26 March 2008, plaintiffs filed a complaint against a number of defendants, which included defendants Euliss, Inc., Tar Heel Land Group, LLC, SunTrust Bank, and VantageSouth Bank (Euliss defendants). This appeal pertains only to the dismissal of plaintiffs' claims against the Euliss defendants, and our discussion of the factual and procedural background will focus primarily on the claims against those parties.

Plaintiffs' complaint alleged that plaintiffs are owners of "real property adjacent to or in the vicinity of" a certain tract of land located in Alamance County containing approximately 170 acres, including a golf course and club house and being formerly known as Piedmont Crescent Country Club (Club). In 1985, Club conveyed the property to defendant Will C. Mann (Mann), upon the condition that Mann would continue to operate the property as a golf course. Simultaneously with the 1985 deed, Mann gave Club the option to re-purchase the property for three years, and a right of first refusal to purchase the property until 4 April 2005. In 1995, Mann and Club executed an agreement terminating the reversionary rights contained in the 1985 documents, and simultaneously executed a Declaration of Covenants, Conditions, and Restrictions upon the property. Mann also executed and recorded at that time a right of first refusal for the property through 2015 to the "Quarry Hills Advisory Board," an entity that the complaint acknowledges was not in existence at that time.

In 2004, Mann amended the restrictions to limit their applicability to the portion of the property used for the golf course. At that time, the right of first refusal was modified to limit its application to the golf course, and to shorten its expiration date to 4 April 2005. In 2005, a second amendment to the restrictions was recorded that permitted Mann to relocate the golf course to other portions of the property. In 2006, a portion of the property was conveyed to defendant Cedar Forest Associates I (Cedar). In 2006, Mann and Cedar recorded a Termination of Restrictive Covenants. On 13 December 2006, Cedar conveyed a portion of the property to defendant Euliss, Inc. (Euliss). Euliss executed a deed of trust in favor of defendant SunTrust Bank, secured by a portion of the property. On 4 May 2007, Mann conveyed a portion of the property to defendant Tar Heel Land Group, LLC (Tar Heel). Tar Heel executed a deed of trust in favor of defendant VantageSouth Bank, secured by a portion of the property. Club was administratively dissolved on 9 June 2005.

Plaintiffs' complaint alleged that they are the intended beneficiaries of the restrictions placed upon the property, that the restrictions were improperly terminated, and that the parties to whom Mann conveyed portions of the property are "not intending to use the Property for the purposes originally intended in the 1985 Deed, the 1995 Declaration and the Agreement." Plaintiffs seek a declaration that the first amendment, second amendment, and termination of the restrictions are invalid, and that the property is subject to the 1985 and 1995 restrictions. Plaintiffs seek monetary damages for breach of contract and unjust enrichment from Mann. Plaintiffs filed a notice of lis pendens on the property.

On 30 July 2008, the Euliss defendants all served motions to dismiss plaintiffs' complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure and to cancel the lis pendens. On 15 December 2008, Judge Jones' order was filed, dismissing plaintiffs' claims as to all of the Euliss defendants and striking the lis pendens as to property owned by Euliss and Tar Heel. Plaintiffs appeal.

II. Appeal of Interlocutory Order

Appeals from the trial division in civil cases are permitted only by statute. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Appeals from interlocutory orders are only permitted in exceptional cases where a party can demonstrate that the order affects a substantial right under N.C. Gen.Stat. § 1-277.¹ See id.; Parrish v. Atlantic Coast Line R.R., Co., 221 N.C. 292, 296, 20 S.E.2d 299, 302 (1942); Cole v. Farmers Bank & Trust Co., 221 N.C. 249, 251, 20 S.E.2d 54, 55 (1942); Tar Heel Hosiery Mill v. Durham Hosiery Mills, 198 N.C. 596, 598, 152 S.E. 794, 795 (1930); Leak v. Covington, 95 N.C. 193, 195 (1886); Welch v. Kinsland, 93 N.C. 281, 282 (1885). A party is not permitted to appeal an interlocutory order because they believe that the ruling places them at a tactical disadvantage at the trial of the case. Nor is an order appealable because all the parties wish to have it appealed. The parties cannot by consent confer jurisdiction of a non-appealable interlocutory order upon the appellate courts. See Wiggins v. Pyramid Life Insurance Co., 3 N.C.App. 476, 478, 165 S.E.2d 54, 56 (1969) ("Jurisdiction cannot be conferred by consent where it does not otherwise exist ...." (citation omitted)). To be appealable, the appellant must be able to clearly articulate why the order affects a substantial right as provided in N.C. Gen.Stat. § 1-277. The reason for this rule was set forth by Justice Ervin in Veazey v. Durham:

There 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. The rules regulating appeals from the Superior Court to the Supreme Court are designed to forestall the useless delay inseparable from unlimited fragmentary appeals, and to enable courts to perform their real function, i.e., to administer "right and justice ... without sale, denial, or delay." N.C. Const., Art. I, Sec. 35.

Veazey, supra at 363-64, 57 S.E.2d at 382. Interlocutory appeals, in addition to delaying the final resolution of the cases, impose a substantial financial burden upon all the litigants involved.

Rule 28(b) of the North Carolina Rules of Appellate Procedure has a specific provision dealing with interlocutory appeals:

(b) Content of appellant's brief. An appellant's brief in any appeal shall contain, under appropriate headings and in the form prescribed by Rule 26(g) and the Appendixes to these rules, in the following order:

. . . .

(4) A statement of the grounds for appellate review. Such statement shall include citation of the statute or statutes permitting appellate review.... When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.

N.C.R.App. P. 28(b)(4) (2009).

Since the order before us did not dispose of all claims and defendants, it is interlocutory. See Dailey v. Popma, 191 N.C.App. 64, 67, 662 S.E.2d 12, 15 (2008) (holding the order granting the defendant's motion to dismiss was an interlocutory order because plaintiff's claims against the other defendant remained pending); Pratt v. Staton, 147 N.C.App. 771, 773, 556 S.E.2d 621, 623 (2001) ("An order ... granting a motion to dismiss certain...