Jeffreys v. Raleigh Oaks Joint Venture, No. 9310SC431

• Docket Nº: No. 9310SC431
• Citation: 444 S.E.2d 252, 115 N.C.App. 377
• Case Date: June 21, 1994
• Court: Court of Appeal of North Carolina (US)

Page 252

444 S.E.2d 252 115 N.C.App. 377 Lois Upchurch JEFFREYS and Joseph Randolph Jeffreys, Plaintiffs,
v.
RALEIGH OAKS JOINT VENTURE, Raleigh Oaks Shopping Center,
Inc., a Tennessee Corporation Seymour Vogel, Syson Group,
Inc., W.R. Henderson & Associates, Inc., a North Carolina
Corporation, W.R. Henderson, Vernon Brown, Raleigh Oaks
Limited, a North Carolina Partnership, and Fleet National
Bank, Defendants. No. 9310SC431. Court of Appeals of North Carolina. June 21, 1994.

McMillan, Kimzey & Smith by James M. Kimzey and Katherine E. Jean, Raleigh, for plaintiff-appellees.

Howard, From, Stallings & Hutson, P.A. by John N. Hutson, Jr., Raleigh, for defendants-appellant.

ORR, Judge.

The sole issue before this Court is whether the trial court erred in granting plaintiffs' summary judgment motion as to ROJV's counterclaims[115 N.C.App. 379] against plaintiffs. We need not address this issue, however, as this appeal is interlocutory and ROJV has failed to show this Court that a substantial right of ROJV's will be affected if ROJV is not given the right of immediate appeal from this order.

ROJV is appealing from the grant of partial summary judgment dismissing its counterclaims against plaintiffs. "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, Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). "The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).

"Nonetheless, in two instances a party is permitted to appeal interlocutory orders...." Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677 (emphasis by underline added). First, a party is permitted to appeal from an interlocutory order when the trial court enters "a final judgment as to one or more but fewer than all of the claims or parties" and the trial court certifies in the judgment that there is no just reason to delay the appeal. N.C.R.Civ.P. 54(b); Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677. Second, a party is permitted to appeal from an interlocutory order when "the order deprives the appellant of a substantial right which would be jeopardized absent a...