Wilson Heights Church of God v. Autry

• Decision Date: 06 June 1989
• Docket Number: No. 8826SC782,8826SC782
• Citation: 94 N.C.App. 111,379 S.E.2d 691
• Parties: WILSON HEIGHTS CHURCH OF GOD, Plaintiff, v. Omega R. AUTRY, Mildred B. Hough, Lillie Ann Elliot, Cary F. Maxwell, Edward Andrew Lindsay, Lloyce Autry, Individually, and Freelander, Inc., Defendants, v. Jesse L. MOSS, Additional Defendant. Omega R. AUTRY, Third Party Plaintiff, v. Dexter CARR, Individually, d/b/a Revelations Company, Third Party Defendant.
• Court: North Carolina Court of Appeals

Page 691

379 S.E.2d 691

94 N.C.App. 111

WILSON HEIGHTS CHURCH OF GOD, Plaintiff, v. Omega R. AUTRY, Mildred B. Hough, Lillie Ann Elliot, Cary F.

Maxwell, Edward Andrew Lindsay, Lloyce Autry, Individually, and Freelander, Inc., Defendants, v. Jesse L. MOSS, Additional Defendant.

Omega R. AUTRY, Third Party Plaintiff, v. Dexter CARR, Individually, d/b/a Revelations Company, Third

Party Defendant.

No. 8826SC782.

Court of Appeals of North Carolina.

June 6, 1989.

R. Lee Myers and G. Patterson Williams, III, Charlotte, for third party plaintiff.

No appearance for Dexter Carr, third party defendant.

LEWIS, Judge.

Autry brings forward two assignments of error. She first contends that the trial court erred in denying her motion for summary judgment and granting summary judgment in favor of third party defendant, Carr. Autry also contends that the trial court erred in denying her subsequent motions to amend, to set aside the judgment and for relief from judgment.

Initially, we note that the summary judgment entered for defendant by Judge Snepp involves less than all the parties or claims arising in this action. Thus, the first issue we must address and one not raised by either party is whether summary judgment granted only as to Carr is immediately appealable or subject to dismissal under G.S. 1A-1, Rule 54(b). G.S. 1A-1, Rule 54(b) provides in pertinent part:

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the 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. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.

(Emphasis added). In the case before us the trial judge failed to specifically certify that there was "no just reason for delay" for appellate review, thus the appeal is considered interlocutory. Federal Land Bank v. Lieben, 86 N.C.App. 342, 357 S.E.2d 700 (1987). However, our courts have held that actions "not properly certified by the trial judge pursuant to Rule 54(b) are nonetheless immediately appealable if denial of an immediate appeal would affect a substantial right and work an injury to the appellant. G.S. 1-277." Harris v. DePencier, 52 N.C.App. 161, 163, 278 S.E.2d 759, 760 (1981).

The "substantial right test" for appellate review requires the court to consider the particular facts of the case and the procedural context in which the order was entered. Federal Land Bank, supra. Here, the issues giving rise to Autry's claim against Carr grew solely from her exclusive dealings with him. She seeks damages for alleged statutory violations by Carr occurring in the course of these dealings. The primary lawsuit initiated by Wilson Heights involves the separate, unrelated dispute over the transfer and ownership of certain property. Under these facts, we believe a "substantial right" of plaintiff has been affected and is appealable under G.S. 1-277 and 7A-27. Summary judgment here denies plaintiff a trial on its claim against defendant and in effect determines the claim for defendant. See Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976).

Having determined that the summary judgment entered by the court in favor of defendant is immediately appealable, we now hold that such a judgment was not proper in this case. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). A party moving for summary judgment has the burden of showing that there is no triable issue of fact and that she is entitled to judgment as a matter of law. Edwards v. Akion, 52 N.C.App. 688, 279 S.E.2d 894, aff'd, 304 N.C. 585, 284 S.E.2d 518 (1981). A defendant may meet this burden by proving that an essential element of a plaintiff's claim is missing or that a plaintiff cannot surmount an affirmative defense which bars the claim. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). Carr has failed to meet his burden.

Carr alleges in his answer the affirmative defenses of laches and estoppel. Neither defense entitles defendant to summary judgment in this case. Carr asserts that Autry waited more than two years to bring an action against him during which time she never once expressed dissatisfaction with his services. The applicable statute of limitations is three years. See G.S. 1-52(2). Autry allegedly sought Carr's services in the summer of 1985 and filed her third party claim in September of 1987 thus within the allotted time limitation. However, laches is an equitable remedy which defendant may properly assert even if the action was brought within the applicable period of time. See McRorie v. Query, 32 N.C.App. 311, 232 S.E.2d 312, disc. rev. denied, 292 N.C. 641, 235 S.E.2d 62 (1977). The court in McRorie, in addressing whether the defense of laches was proper in that case, noted:

The question is primarily whether the delay in acting results in an inequity to the one against whom the claim is asserted.... Also to be considered is whether the one against whom the claim is made had knowledge of the claimant's claim and whether the one asserting the claim had knowledge or notice of the defendant's claim and had been afforded the opportunity of instituting an action.

Id. at 323, 232 S.E.2d at 320. Carr has failed to assert or provide any supporting evidence that he suffered any inequity or that Autry delayed unnecessarily in filing her claim; thus a genuine issue of fact remains as...