Jenkins v. Maintenance, Inc., 8413SC1192

• Decision Date: 16 July 1985
• Docket Number: No. 8413SC1192,8413SC1192
• Citation: 332 S.E.2d 90,76 N.C.App. 110
• Court: North Carolina Court of Appeals
• Parties: Dennis JENKINS and wife Rachel Jenkins v. MAINTENANCE, INC. and Tylon O. Williams and wife Jean Claudette Williams.

Page 90

332 S.E.2d 90

76 N.C.App. 110

Dennis JENKINS and wife Rachel Jenkins v. MAINTENANCE, INC. and Tylon O. Williams and wife Jean Claudette Williams.

No. 8413SC1192.

Court of Appeals of North Carolina.

July 16, 1985.

Legal Services of the Lower Cape Fear by Lisbon C. Berry, Jr., Wilmington, for plaintiff-appellants.

Frink, Foy, Gainey and Yount by Henry G. Foy, Southport, for defendant-appellees.

PARKER, Judge.

General Statute 1A-1, Rule 54(b) provides that when multiple parties are involved, the trial court may enter summary judgment "as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment." This rule is limited by the language "except as expressly provided by these rules or other statutes." Thus, G.S. 1A-1, Rule 54(b) does not permit appeal if fewer than all claims or parties have been disposed of unless it is provided that "there is no just reason for delay," or when other statutes expressly provide otherwise. Oestreicher v. American National Stores, Inc., 290 N.C. 118, 225 S.E.2d 797 (1976). The other statutes which affect G.S. 1A-1, Rule 54(b) are G.S. 1-277 and G.S. 7A-27. Id. Accord, Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Newton v. Standard Fire Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). Under G.S. 7A-27(d), appeal to this Court lies from an interlocutory order which affects a substantial right, or in effect determines the action and prevents a judgment from which appeal might be taken, or discontinues the action, or grants or refuses a new trial. General Statute 1-277 permits appeal from an interlocutory judicial order which affects a substantial right which will work injury if not corrected before final judgment.

In the instant case the order did not contain the certification that there "is no just reason for delay." Plaintiff's appeal is, therefore, premature unless the order affected a substantial right.

As our Supreme Court observed, "the 'substantial right' test for appealability of interlocutory orders is more easily stated than applied." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). A substantial right is a right which will be lost or irremediably adversely affected if the order is not reviewable before the final judgment. Blackwelder v. State Department of Human Resources, 60 N.C.App. 331, 299 S.E.2d 777 (1983).

In the instant case, plaintiffs alleged in their complaint:

6. Said deed was secured from the Plaintiff Rachael Jenkins by the Defendants Tylon O. Williams and Jean Claudette Williams by fraud, or in the alternative by mutual mistake, and that the said Plaintiff, Rachael Jenkins, Defendants Tylon O. Williams and wife Jean Claudette Williams had agreed that Rachael Jenkins would only deed approximately 3 acres of land to the Defendants Tylon O. Williams and wife Jean Claudette Williams when in fact said deed, which was prepared by Tylon O. Williams' attorney, called for 7 1/2 acres of land, more or less. The defendants Tylon O. Williams and wife Jean Claudette Williams misled Rachael Jenkins into believing that she was conveying only 3 acres of land, and did so deliberately and intentionally intending to defraud the Plaintiffs, who relied to their detriment on a material misrepresentation of fact.

....

11. By deed dated March 16, 1979, the Defendants Tylon O. Williams and wife Jean Claudette Williams conveyed the aforesaid property by general warranty deed to the Defendant Maintenance, Inc. which deed was recorded April 12, 1979 in Book 422 at Page 484 of the Brunswick County Registry.

Plaintiffs requested a judgment quieting title to the property in the plaintiffs, actual damages of $5,000 and punitive damages of $100,000.

Since Maintenance is the current owner of the property, Maintenance is the only party through whom and from whom plaintiff could obtain reformation of the deed and reconveyance of the property, a possible remedy in an action premised on fraud and misrepresentation. The summary judgment in favor of Maintenance precluded plaintiff from electing this remedy, thereby affecting a substantial right. The interlocutory order is, therefore, appealable.

Plaintiffs argue that the trial court erred in granting Maintenance's motion for summary judgment because there was a genuine issue of material fact as to whether the deed from plaintiffs was effective to transfer title to the Williamses. On a motion for summary judgment the moving party has the burden of providing a forecast of his evidence which he has available for presentation at trial. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). The movant's forecast must establish his right to judgment as a matter of law; this will compel the opponent to...