Wachovia Realty Investments v. Housing, Inc., 7521SC747

• Decision Date: 21 January 1976
• Docket Number: No. 7521SC747,7521SC747
• Citation: 221 S.E.2d 381,28 N.C.App. 385
• Court: North Carolina Court of Appeals
• Parties: WACHOVIA REALTY INVESTMENTS et al. v. HOUSING, INC., et al. v. C. P. ROBINSON, Jr.

Page 381

221 S.E.2d 381

28 N.C.App. 385

WACHOVIA REALTY INVESTMENTS et al. v. HOUSING, INC., et al. v. C. P. ROBINSON, Jr.

No. 7521SC747.

Court of Appeals of North Carolina.

Jan. 21, 1976 Certiorari Allowed by Supreme Court April 5, 1976.

Womble, Carlyle, Sandridge & Rice by W. P. Sandridge, Jr., Winston-Salem, for plaintiff appellee.

Hoyle, Hoyle & Boone by John T. Weigel, Jr.; Smith, Moore, Smith, Schell & Hunter by Jack W. Floyd and O. Max Gardner, III, Greensboro, for defendant appellant.

CLARK, Judge.

The judgment of the trial court, though granting summary judgment for plaintiff on its claim, retained the cause 'for determination of what amount, if any, are the defendants entitled to as a setoff' under G.S. 45--21.36, and 'as to the rights, if any, of the defendant Housing, Inc. to indemnification by the defendant C. P. Robinson, Jr.' Under G.S. 1A--1, Rule 54(b) the trial court 'may enter a final 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.' In this case there was no determination in the judgment that there is no reason for delay.

It is obvious that this judgment adjudicated 'fewer than all the claims or the rights and liabilities of fewer than all the parties.' Therefore, under G.S. 1A--1, Rule 54(b) there was no final judgment, and it 'shall not then be subject to review Either by appeal or otherwise except as expressly provided by these rules or other statutes.'

In Arnold v. Howard, 24 N.C.App. 255, 210 S.E.2d 492 (1974), the court, in construing G.S. 1A--1, Rule 54(b), ruled that G.S. 1--277 was not a statute expressly providing for review by appeal or otherwise within the meaning of the above-quoted term 'except as expressly provided by these rules or other statutes.' Briefly, G.S. 1--277(a), and also G.S. 7A--27(d), provide for appeal from an interlocutory order which affects a substantial right, or in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action, or grants or refuses a new trial. Arnold v. Howard, supra, has been followed by this Court in numerous decisions. See Durham v. Creech, 25 N.C.App. 721, 214 S.E.2d 612 (1975); Leasing, Inc. v. Dan-Cleve Corp., 25 N.C.App. 18, 212 S.E.2d 41 (1975); Siders v. Gibbs, 26 N.C.App. 333, 215 S.E.2d 813 (1975); Christopher v. Bruce-Terminix Co., 26 N.C.App. 520, 216 S.E.2d 375 (1975); Mozingo v. Bank, 27 N.C.App. 196, 218 S.E.2d 506 (1975); Ostreicher v. Stores, Inc., 27 N.C.App. 330, 219 S.E.2d 303 (1975); and Builders, Inc. v. Felton, 27 N.C.App. 334, 219 S.E.2d 287 (1975).

So we have interpreted G.S. 1A--1, Rule 54(b) to mean that if the order or judgment adjudicates fewer than all the claims, or the rights and liabilities of fewer than all the parties, and there is no determination in the order or judgment that 'there is no just reason for delay', then the order or judgment is not subject to appellate review on the ground that it affects a substantial right, or other grounds enumerated in G.S. 1--277 or G.S. 7A--27(d). Under this Rule the order or judgment is not final and 'is Subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.' (Emphasis added.)

One of the obvious purposes of Rule 54 is to minimize fragmentary appeals. It permits appeals only from final judgments, upon the trial court's determination of 'no just reason for delay.' Appellate review of an 'interlocutory order' under Rule 54 may be had under the provision 'shall not then be subject to review either by appeal or otherwise Except as expressly provided by these rules or other statutes.' (Emphasis added.) This provision, not included in the Federal Rules, may give us, by certiorari or otherwise, limited power to allow appellate review of a Rule 54 interlocutory order, but in view of all of the provisions of the Rule including the right of the trial court to revise the order or judgment at any time before final adjudication, this provision should be strictly construed; and discretionary authority thereunder, if any, should be exercised sparingly in...