Mcmahon & Assoc.s LLC v. Future Serenity Inc
| Decision Date | 07 September 2010 |
| Docket Number | No. 07 CVS 2322,NO. COA09-1580,COA09-1580,07 CVS 2322 |
| Court | North Carolina Court of Appeals |
| Parties | MCMAHON & ASSOCIATES, LLC, Plaintiff, v. FUTURE SERENITY, INC., HENDERSON PROPERTIES & INVESTMENTS, LLC, LTD OF LAKE NORMAN, LLC, LAURA C. CHILCOAT (previously)TOMCZAK, TERRY EDMUNDSON, Defendants HENDERSON PROPERTIES & INVESTMENTS, LLC, Third-Party Complainant, v. CHRISTOPHER CANIPE, Third-Party Defendant. |
Blanco Tackabery & Matamoros, P.A., by Peter J. Juran, for plaintiff.
Eisele, Ashburn, Greene & Chapman, PA, by Douglas G. Eisele, for defendants Future Serenity, Inc., LTD of Lake Norman, L.L.C., Laura Chilcoat, and Terry Edmundson.
Homesley, Goodman & Wingo, PLLC, by Andrew J. Wingo and Michael F. Roessler, for defendant Henderson Properties & Investments, LLC.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by plaintiff from orders filed 26 March 2009 and 24 August 2009 by Judge Mark Klass in Iredell County Superior Court, and cross-assignment of error by defendants. Heard in the Court of Appeals 27 April 2010.
One superior court judge may not overrule the rulings of another superior court judge previously made in the same case on the same legal issue. Judge Klass' order granting summary judgment is vacated to the extent that it overruled Judge Beale's order denying summary judgment. The denial of a motion for summary judgment is interlocutory, and this portion of defendants' appeal is dismissed. Judge Klass erred by granting summary judgment in favor of defendants Future Serenity, LTD, Chilcoat, and Terry on plaintiff's claim for tortious interference with a contract. Judge Klass erred by granting defendant Henderson's motion for summary judgment.
In November 2 0 04, Terry Edmundson (Terry) engaged the services of a commercial real estate broker, McMahon & Associates, LLC (plaintiff), to locate an office rental space for LTD of Lake Norman, LLC (LTD). Terry is 50% owner of LTD, and Laura Chilcoat (Chilcoat), previously Tomczak, owns the other 50% of LTD. Plaintiff located a building, owned by Henderson Properties and Investments, LLC (Henderson). Terry and Chilcoat planned to open a Re/Max Realty office in the office building.
On 6 December 2004, plaintiff and Henderson entered into a contract styled as "Disclosure and Fee Agreement for Non-Listed Property Lease," (Agreement) which was executed to facilitate the lease of commercial property (the property) located in Mooresville from Henderson to prospective tenants "Terry Edmundson and/or assignees." The Agreement contained a "Sale Protection Provision," under the terms of which Henderson would be obligated to pay plaintiff 3% of the gross sales price on any sale of the property to "Terry Edmundson and/or assignees" within ten years of the date of the Agreement. On 17 December 2004, Terry, as President of LTD, signed a lease agreement for the property with Henderson.
In the spring of 2006, Chris Canipe (Canipe), a realtor and agent of LTD, was approached by Marshall Henderson (Marshall), the principal of Henderson, seeking LTD's assistance in selling the property. Canipe told Marshall that LTD would be interested in purchasing the property, "whereupon [Marshall] stated that he could not sell the [property] to LTD because such transaction could trigger an obligation for Henderson to pay a commission to [plaintiff]." After receiving this information, Chilcoat contacted plaintiff and requested that plaintiff waive the 3% commission, but plaintiff refused.
On 2 August 2006, Chris Edmundson (Chris) filed Articles of Incorporation for Future Serenity, Inc. (Future Serenity) with the office of the North Carolina Secretary of State. Chris is the husband of Terry. In September 2006, Chris, acting for Future Serenity, presented an offer to Henderson to purchase the property for $1,800, 000.00 contingent upon Future Serenity's ability to secure financing within ninety days. The ninety day period lapsedbecause Future Serenity was unable to secure financing. Henderson then agreed to an indefinite extension of the right to purchase the property at the same price. The 2006 Tax Return for Future Serenity listed Terry as a shareholder, owning 50% of the stock.
On 15 March 2007, Future Serenity purchased the property from Henderson. At the time of purchase, Chris and Chilcoat each owned 50% of Future Serenity's stock. Upon purchase of the property, Future Serenity became landlord to LTD. The 2007 Tax Return for Future Serenity listed Chris and Chilcoat as shareholders, each owning 50% of Future Serenity's stock.
On 9 August 2007, plaintiff filed a complaint in Iredell County Superior Court against Future Serenity, Henderson, LTD, Chilcoat, Terry and Marshall. Plaintiff asserted four causes of action: (1) breach of contract against Henderson; (2) civil conspiracy against all defendants; (3) unfair and deceptive trade practices against all defendants; and (4) fraud against all defendants. On 15 April 2008, plaintiff filed a voluntary dismissal as to all claims against Marshall, and the claims for civil conspiracy, unfair and deceptive trade practices, and fraud against Henderson. The claim for breach of contract against Henderson was not dismissed.
On 29 August 2008, Future Serenity, LTD, Chilcoat, and Terry filed a motion for summary judgment. On 18 September 2008, plaintiff filed a motion seeking to amend its complaint by adding a claim for tortious interference with a contract against Chilcoat and Terry. On 19 September 2008, Henderson filed a motion seekingto add Canipe as a third-party defendant and to file a cross-claim against LTD. On 7 November 2008, Judge Michael E. Beale entered an order denying the motion for summary judgment, allowing plaintiff's motion to amend, and allowing Henderson's motion to add Canipe as a third-party defendant and to file a cross-claim against LTD.
On 13 February 2 009, Henderson filed a motion for summary judgment. On 26 March 2009, Judge Klass filed an order granting Henderson's motion for summary judgment. On 1 April 2009, Future Serenity, LTD, Chilcoat, and Terry filed a second motion for summary judgment. On 6 April 2009, plaintiff filed a motion seeking to amend its amended complaint by adding a claim for unfair and deceptive trade practices against Henderson. That same day, plaintiff filed a "Motion for Relief from Order Pursuant to Rule 60," seeking to have the order granting summary judgment in favor of Henderson set aside based upon Rules 60(b)(2), (3), and (6). On 24 August 2009, Judge Klass filed three orders: denying plaintiff's motion to amend its amended complaint, granting the motion for summary judgment of Future Serenity, LTD, Chilcoat and Terry, and denying plaintiff's Rule 60 motion.
Plaintiff appeals the orders granting summary judgment as to Henderson, the denial of its Rule 60 motion, the granting of summary judgment as to Future Serenity, LTD, Chilcoat and Terry, and the denial of its motion to amend. Defendants Future Serenity, LTD, Chilcoat, and Terry cross-assign error to Judge Beale's denial of their motion for summary judgment.
In its second argument, plaintiff contends that Judge Klass erred in granting defendants Future Serenity, LTD, Chilcoat, and Terry's motion for summary judgment because their prior motion for summary judgment had been denied by Judge Beale. We agree.
The relationship between two trial judges' orders on summary judgment raises a jurisdictional issue. Cail v. Cerwin, 185 N.C. App. 176, 181, 648 S.E.2d 510, 514 (2007). "Ordinarily, one superior court judge may not overrule the judgment of another superior court judge previously made in the same case on the same legal issue." Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 632-33, 272 S.E.2d 374, 376 (1980)(citations omitted), disc, review denied, 302 N.C. 217, 276 S.E.2d 914 (1981); see also Adkins v. Stanly Cty. Bd. of Educ., _ N.C. App. _, _, 6 92 S.E.2d 470, 472 (2010). There is an exception for orders that do not resolve an issue but direct some further proceeding prior to a final ruling, but "when the [trial] judge rules as a matter of law, not acting in his discretion, the ruling finally determines the rights of the parties unless reversed upon appellate review." Id. at 633, 272 S.E.2d at 376.
In the context of summary judgment, this Court has held that in the granting or denial of a motion for summary judgment, the court is ruling as a matter of law. Such a ruling is determinative as to the issue presented. Thus, although there may be more than one motion for summary judgment in a lawsuit, the second motion will be appropriate only if it presents legal issues that are different from those raised in the earlier motion.
Call, 185 N.C. App. at 181-82, 648 S.E.2d at 514 (internal citations, quotations and alterations omitted).
In the instant case, when defendants Future Serenity, LTD, Chilcoat and Terry filed their first motion for summary judgment, the claims pending against them were for civil conspiracy, unfair and deceptive trade practices, and fraud. These defendants argued that they were entitled to summary judgment because the elements of a civil conspiracy were absent and because Future Serenity was an innocent purchaser for value. In his order denying summary judgment, Judge Beale found that "[b]ased on issues of material fact presented at the hearing, the Court is of the opinion that Summary Judgment is not appropriate...."
Approximately six months later, defendants Future Serenity, LTD, Chilcoat, and Terry filed a second motion for summary judgment. The claims pending against them were for civil conspiracy, unfair and deceptive trade practices, fraud,...
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