North Carolina Dept. of Transp. v. Page

• Citation: 460 S.E.2d 332,119 N.C.App. 730
• Decision Date: 15 August 1995
• Docket Number: No. COA94-1085,COA94-1085
• Parties: NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff, v. F. Roger PAGE, Jr., Doris B. Page and Pace Oil Co., Inc., Defendants.
• Court: North Carolina Court of Appeals

Page 332

460 S.E.2d 332

119 N.C.App. 730

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff, v. F. Roger PAGE, Jr., Doris B. Page and Pace Oil Co., Inc., Defendants.

No. COA94-1085.

Court of Appeals of North Carolina.

Aug. 15, 1995.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. Emmett B. Haywood, Raleigh, for plaintiff-appellee.

Robinson Maready Lawing & Comerford, L.L.P. by William F. Maready, Clifford Britt, and H. Stephen Robinson, Winston-Salem, for defendants-appellants.

WALKER, Judge.

This appeal arises out of a contractual dispute between plaintiff North Carolina Department of Transportation (the Department) and defendant F. Roger Page, Jr. (Page) concerning the relocation of State Secondary Road 1568 (SR 1568) on Topsail Island, North Carolina. Page owned numerous properties on Topsail Island, including one tract which was under option to Resort Equities, Inc., who planned to build a condominium resort (Villa Capriani) on the site. Resort Equities' plans required the relocation of SR 1568, and Page agreed to assist Resort Equities in negotiating the relocation of the road. On 13 January 1987, Page and the Department executed an "Agreement for Relocation of SR 1568" (the 1987 agreement). Page agreed to construct the entire 4.0 mile portion of the new SR 1568 at his expense and to obtain the necessary right-of-ways. Page further agreed to deed the relocated SR 1568 and associated right-of-ways to the Department upon completion. The Department agreed to accept Page's tender of the road and to abandon the corresponding portion of the old SR 1568 upon completion of construction.

Construction of Phase I of the new SR 1568 began more than a year after the 1987 agreement was executed. This delay occasioned a corresponding delay in the construction of Villa Capriani. These delays, combined with overruns in construction costs for the road relocation, caused severe financial difficulties for Page, who had invested considerable funds into both the development of Villa Capriani and the road relocation.

On 20 September 1989, Page tendered Phase I of the new SR 1568 to the Department and requested that the Department accept it and abandon the corresponding section of the old road. The Department refused Page's tender. On 13 October 1989, the Board of Transportation passed a resolution which conditioned the Department's acceptance of Phase I and its abandonment of the corresponding section of the old road on, among other things, the execution of "a supplemental agreement ensuring completion of the remainder of SR 1568" and Page's provision of a "surety or cash bond in an amount determined by the Secretary of Transportation ... to be adequate to cover the estimated cost of the right of way and construction of the uncompleted portion of SR 1568...." On 19 October 1989, the parties executed a "Supplemental Agreement for Relocation of SR 1568," and Page and his wife, Doris, signed a "Guaranty of Performance" individually and as officers of defendant Pace Oil Company, Inc. On the following day, the Department accepted Phase I and abandoned the corresponding portion of the old road. Page did not complete the remainder of the construction of the new SR 1568, and the Department completed the project.

On 29 April 1991, the Department filed suit alleging that Page breached the 1987 and 1989 agreements and that Doris Page and Pace Oil Company, Inc. had guaranteed his performance in the 1989 guaranty. Defendants answered and counterclaimed, alleging that the Department breached the 1987 agreement by conditioning its performance thereunder on the execution of the 1989 supplemental agreement and guaranty; that the agreements were void as illegal bargains; that the State interfered with Page's performance through a campaign of harassment, interference, and delay; and that the 1989 supplemental agreement and guaranty were obtained by coercion and duress.

The Department moved for summary judgment on all issues except damages, and defendants moved for summary judgment on all issues. On 13 May 1994, the trial court denied defendants' motion and granted the Department's motion as to defendants' first defense (alleging the State's interference with Page's performance), their third and fourth defenses (alleging that the 1989 supplemental agreement and guaranty were obtained through coercion and duress), their tenth defense (alleging illegality), and their eleventh defense (alleging frustration of purpose). The trial court denied the Department's motion as to the remaining defenses.

During pretrial hearings, the Department moved that defendants be prevented from presenting any evidence which, but for the court's summary judgment order, might have been used to show that the 1989 supplemental agreement and guaranty were obtained by coercion and duress. Defendants argued that this evidence was necessary to show that the Department breached the 1987 agreement by conditioning its performance thereunder on defendants' execution of the 1989 supplemental agreement and guaranty. The trial court granted the Department's motion. After the jury was empaneled, but before opening statements began, defendants gave notice of appeal, and the trial court declared a mistrial.

The Department argues that the trial court's order and rulings are interlocutory and not immediately appealable. An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy. Cagle v. Teachy, 111 N.C.App. 244, 247, 431 S.E.2d 801, 803 (1993). There is generally no right to appeal an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). The purpose of 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.' " Id. (quoting Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985)).

However, there are two avenues by which a party may immediately appeal an interlocutory order or judgment. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C.Gen.Stat. § 1A-1, Rule 54(b), an immediate appeal will lie. Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253. Second, an appeal is permitted under N.C.Gen.Stat. §§ 1-277(a) and 7A-27(d)(1) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review. Id.

Defendants appeal the trial court's order granting the Department's motion for summary judgment on defendants' third and fourth defenses, alleging coercion and duress, and denying defendants' motion for summary judgment on their second defense, alleging that the Department breached the 1987 agreement by conditioning its performance thereunder on defendants' signing the 1989 supplemental agreement and guaranty. The court's order did not completely dispose of the case and is therefore interlocutory. See Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253 (granting of partial summary judgment is interlocutory order from which there is ordinarily no right of appeal); Fraser, 75 N.C.App. at 655, 331 S.E.2d at 218 (denial of summary judgment is not final judgment and is not immediately appealable).

In the instant case, it appears that the trial court attempted to certify the case for immediate appeal under Rule 54(b), stating,

[T]he Court has ... no bases in law that I can determine to prevent the defendants from giving notice of appeal, and the law seems to be clear once notice of appeal is given, until the Court of Appeals or some Appellate Court determines this is an interlocutory appeal that does not affect a substantial right, that I have no way of precluding counsel from giving notice of appeal and have no way of causing this trial to go forward.

The court signed an appeal entry on 8 June 1994. This Court has held that "the signing of an appeal entry by the trial court cannot, in and of itself, be held to satisfy the affirmative act of certification required by Rule 54(b)." Leasing Corp. v. Myers, 46 N.C.App. 162, 171-172, 265 S.E.2d 240, 247, appeal dismissed, 301 N.C. 92, (1980) (subsequent history not reported in S.E.2d). Thus, the trial court's attempt to certify the case for appeal is ineffective.

However, defendants may still pursue an immediate appeal of the trial court's order and rulings under the substantial right doctrine. This doctrine, derived from N.C.Gen.Stat. §§ 1-277(a) and 7A-27(d)(1), provides in effect that "no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment." Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 333, 299 S.E.2d 777, 779 (1983). North Carolina courts have long acknowledged that the substantial right doctrine

is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.

Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978); see generally J. Brad Donovan, The Substantial...