Johnson v. Lucas, COA03-1358.

• Decision Date: 15 February 2005
• Docket Number: No. COA03-1358.,COA03-1358.
• Parties: Patricia JOHNSON, Doris Laryea, Lovie H. Jones, and Geraldine Collier, Plaintiffs, v. Lynwood LUCAS and Joe Peacock, t/a Triangle Timber Services, Defendants.
• Court: North Carolina Court of Appeals

608 S.E.2d 336

168 NC App. 515

Patricia JOHNSON, Doris Laryea, Lovie H. Jones, and Geraldine Collier, Plaintiffs, v. Lynwood LUCAS and Joe Peacock, t/a Triangle Timber Services, Defendants.

No. COA03-1358.

Court of Appeals of North Carolina.

February 15, 2005.

Hunter, Higgins, Miles, Elam & Benjamin, P.L.L.C., by Robert N. Hunter, Jr. and Christopher M. Craig, Greensboro, for plaintiff-appellees.

Ligon and Hinton, by George Ligon, Jr., Raleigh, for defendant-appellant.

HUDSON, Judge.

Lynwood Lucas ("defendant Lucas") appeals from partial summary judgment awarding seventy-seven thousand dollars ($77,000) with costs to Patricia Johnson, Doris Laryea, Lovie H. Jones, and Geraldine Collier (collectively, "plaintiffs"), the judgment recoverable from defendant Lucas and Joe Peacock ("defendant Peacock") (collectively, "defendants"), jointly and severally. The court based its judgment in part upon prior findings of fact by Judge J.B. Allen, Jr., from a July 2001 order in which defendant Lucas was ordered to pay defendant Peacock seventy-seven thousand dollars ($77,000). We dismiss this appeal as interlocutory.

I. Background

James Lucas, Sr., owned property ("Property") located in Wake County, North Carolina. His children are Patricia Johnson, Doris Laryea, Geraldine Collier, defendant Lucas, and William Lucas, who is not a party to this action. When James Lucas, Sr., died in 1967, the Property passed by will to his widow, plaintiff Lovie H. Jones, for life. Upon her death, the Property passed equally to his children as remaindermen and joint tenants. The Estate of James Lucas, Sr. was closed on 2 December 1969 after the Clerk of Court approved the Final Account, filed by defendant Lucas as Executor.

At the time of relevant events, plaintiff Lovie H. Jones lived on the Property, where she remained until her death in April 1999. Upon Lovie H. Jones' death, plaintiff Patricia Johnson assumed possession of the Property.

In November 1995, defendant Lucas approached defendant Peacock regarding the sale of timber growing on the Property. Defendant Lucas represented and warranted to defendant Peacock that plaintiff Lovie H. Jones owned the property and that he was authorized to sell the timber. Defendant Lucas and plaintiff Lovie H. Jones executed a "Timber Deed" granting defendant Peacock ownership in the timber on the Property. Defendant Peacock testified he purchased the timber believing that defendant Lucas and his mother, Plaintiff Lovie H. Jones, were authorized to sell it. Defendant Peacock harvested the timber and sold it to several lumber yards for $107,040.74. Defendant Peacock subsequently paid defendant Lucas $32,413.20, the purchase price set forth in the agreement.

On 5 May 1997, plaintiffs filed suit alleging that defendant Lucas sold the timber without authorization from the other remaindermen and did not share the proceeds. Plaintiffs alleged: (1) Fraud and Misrepresentation, (2) Conversion, (3) Trespass, (4) Civil Conspiracy, (5) Unlawful Cutting of Timber, and (6) entitlement to Punitive Damages. The record contains returned summonses showing service of process by the Sheriff of Wake County on defendant Lucas and defendant Peacock's agent personally. Defendant Lucas did not answer the complaint.

Defendant Peacock filed an answer and crossclaim against defendant Lucas alleging: (1) defendant Lucas represented himself as agent for the owners of the timber and defendant Peacock relied in good faith on those representations, (2) defendant Lucas covenanted and warranted to defendant Peacock that he was authorized to act on the "behalf of the owners of the timber," and (3) defendant Peacock should be indemnified by defendant Lucas if damages are awarded. Defendants Peacock and Lucas stipulated in the record that service of process of the crossclaim was not obtained on defendant Lucas.

On 27 June 1997, plaintiffs obtained an Entry of Default from the Wake County Assistant Clerk of Superior Court against defendant Lucas for failure to appear, plead, or otherwise defend. Subsequently, following a hearing on 2 July 2001 in Wake County Superior Court, Defendant Peacock obtained judgment against defendant Lucas for seventy-seven thousand dollars ($77,000). Defendant Lucas was not notified, and was neither present at the hearing nor represented by counsel.

On 13 March 2002, the court dismissed plaintiffs' complaint with prejudice for lack of activity after the hearing on 2 July 2001, and ordered plaintiffs to pay court costs. Defendant Lucas was not present. On 6 February 2003, plaintiffs filed a Motion for Relief from Judgment under Rule 60(b) of the N.C. Rules of Civil Procedure. Judge Narley Cashwell heard the motion on 6 April 2003, and ordered the dismissal set aside and the case reinstated. Both defendants took exception to the ruling.

On 10 March 2003 defendant Lucas filed a Motion for Relief from Judge Allen's 2 July 2001 order that required him to pay defendant Peacock Seventy-Seven Thousand Dollars ($77,000).

On 5 May 2003, Defendant Lucas filed a Motion to Set Aside the Default entered against him on 27 June 1997, and also filed a Motion to Dismiss defendant Peacock's Crossclaim. These motions remain pending.

Plaintiffs filed a Motion for Partial Summary Judgment against defendant Peacock on 10 April 2003 based on Claim # 5 of their complaint entitled "Unlawful Cutting of Timber" and a hearing was held on 9 June 2003. The court entered Partial Summary Judgment for plaintiffs against both defendants for the Unlawful Cutting of Timber. The ruling was based solely upon the findings of fact in the 12 July 2001 judgment against defendant Lucas. Defendant Lucas appeals.

II. Issues

The issues on appeal are whether: (1) this appeal by defendant Lucas is interlocutory; (2) the superior court erred in granting summary judgment if William Lucas was a necessary party; (3) the prior judgment was void; and (4) there were issues of fact as to damages. However, in light of our conclusion that this appeal should be dismissed as interlocutory, we do not reach any of the remaining issues.

III. Interlocutory Appeal

We initially consider whether this appeal from a partial summary judgment is properly before this Court. Neither party raised the issue of whether the appeal is interlocutory or properly before the Court, and the appellant has asserted that the order appealed from is a final judgment. Given that the record shows the order to be interlocutory, as discussed below, we address this issue on our own motion.

It appears from the record that the trial court granted defendant's motion for partial summary judgment, leaving several of the plaintiff's claims still pending. "A final judgment is one that determines the entire controversy between the parties, leaving nothing to be decided in the trial court." Ratchford v. C.C. Mangum, Inc., 150 N.C.App. 197, 199, 564 S.E.2d 245, 247 (2002). As such, the order granting partial summary judgment is interlocutory. Ordinarily, there is no right of immediate appeal from an interlocutory order. Travco Hotels, Inc. v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). The record indicates that the trial court did not certify this case for immediate appeal pursuant to Rule 54(b) of the Rules of Civil Procedure.

It is well established that the appellant bears the burden of showing to this Court that the appeal is proper. First, when an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review "sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C. R.App. P., Rule 28(b)(4). Here, defendant simply asserts in its statement of grounds for appellate review that the order "is a final judgment," and, not recognizing the appeal as interlocutory, does not address what substantial right might be lost if this appeal does not lie. Thus, we could dismiss the appeal based solely on failure to comply with this requirement of the Rules.

In addition, however, defendant has failed to carry the burden of showing why the appeal affects a substantial right. "It is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal, ... and not the duty of this Court to construct arguments for or find support for appellant's right to appeal[.]" Thompson v. Norfolk & Southern Ry., 140 N.C.App. 115, 121, 535 S.E.2d 397, 401 (2000) (internal citations and quotation marks omitted). Where the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994). The appellant's brief here contains no statement of the grounds for appellate review of the interlocutory order, and no discussion of any substantial right that will be affected if we do not review this order at this time. Therefore, both because of defendant's failure to comply with Rule 24(b)(4), and for defendant's failure to carry its burden of proof, we dismiss this appeal as interlocutory. In light of our conclusion that we should dismiss this appeal, we do not reach the merits of the issues.

Dismissed.

Judge BRYANT concurs.

Judge TYSON dissents in a separate opinion.

TYSON, Judge dissenting.

The majority's opinion dismisses defendant Lucas's appeal for failing to: (1) state in his brief the grounds for appellate review of an interlocutory appeal; and (2) discuss the substantial rights that will be affected if this appeal is not reviewed at this time. Neither party raised the issue of the interlocutory nature of this appeal in their respective briefs. The majority's opinion reached that issue ex mero motu. In my view, defendant Lucas sufficiently argues the applicable substantial rights that would be adversely affected without this Court's review. I vote to reach the merits of the case, vacate the trial court's...