Worthington v. Walter Poole Realty, Inc., No. COA08-1390 (N.C. App. 9/1/2009)
| Decision Date | 01 September 2009 |
| Docket Number | No. COA08-1390.,COA08-1390. |
| Court | North Carolina Court of Appeals |
| Parties | ANNE P. WORTHINGTON, Plaintiff, v. WALTER POOLE REALTY, INC.; WALTER ROY POOLE, JR., Individually; W. ROY POOLE, INC.; SOVEREIGN REAL ESTATE CORPORATION; PINNACLE REAL ESTATE CORPORATION; and WESTPARKE DEVELOPMENT, INC., Defendants. |
Harvell and Collins, P.A., by Wesley A. Collins, for plaintiff-cross-appellants.
White & Allen, P.A., by E. Wyles Johnson, Jr. and John P. Marshall, for defendant-appellants/cross-appellees.
There being no substantial right based upon either collateral estoppel or the possibility of inconsistent verdicts, the appellant's appeal is dismissed. There being no basis for plaintiff's cross-appeal, it is also dismissed.
Anne Poole Worthington (plaintiff) and defendants were involved in a series of lawsuits (cases 05 CVS 1376, 06 CVS 729, 06 CVS 1690, and 06 CVS 1693) in Lenoir County, North Carolina. A mediated settlement conference was held which resulted in the parties executing a document styled as "Settlement and Mutual Release in Full of All Claims" (Release) on 11 January 2007. This Release provided for the payment of $1,650,000.00 to plaintiff and her attorneys in settlement of "those matters and things set forth or which could have been set forth and those claims asserted or which could have been asserted" in the four above-referenced civil cases. It also stated that plaintiff does:
hereby release, acquit and forever fully and generally discharge, as of the execution of this Settlement and Mutual Release in Full of All Claims, Walter Roy Poole, Jr. ("Poole"), Walter Poole Realty, Inc., W. Roy Poole, Inc., Sovereign Real Estate Corporation, Pinnacle Real Estate Corporation, and Westparke Development, Inc., (collectively, the "Corporations"), their predecessors and successors in interest, parent entities, subsidiaries, shareholders, directors, officers, employees, representatives and agents from any and all claims, liability, actions, rights or causes of action, demands, damages, consequential damages, judgments, executions, costs, dividends, expenses, compensation, wages, and suits at law or in equity of every kind and nature whatsoever, whether based upon alleged tort, alleged contract or any other legal or equitable theory of recovery, known or unknown, suspected to exist or not suspected to exist, anticipated or not anticipated, we now have or might otherwise have had now or in the future on account of, relating to or arising out of our stock ownership, our employment by, or our position as a director or officer in any of the Corporations or their predecessors in interest hereby released and discharged, and the purchase, sale and transfer of our stock in any of the Corporations or their predecessors in interest hereby released and discharged[.]
On June 2007, plaintiff instituted this action in the Superior Court of Pitt County. The complaint asserted the 11 January 2007 Release and also that there was a prior promissory note (Note) from Walter Poole Realty, Inc. dated 17 June 1998, in the original principal amount of $3,000,000.00, with a balance due in excess of $532,899.00. It was further alleged that a dispute had arisen between the parties as to whether the Release discharged the 17 June 1998 Note. Plaintiff's complaint asserted the following claims: (1) for a declaratory judgment that the Release did not discharge the Note; (2) for the balance due on the Note; (3) for unfair and deceptive trade practices (Chapter 75); (4) breach of contract for failure to make payment under the Note; and (5) for tortious breach of contract. Defendants filed an answer on 10 September 2007, denying the material allegations of the complaint.
On 11 June 2008, defendants filed a motion for summary judgment. By order dated 3 July 2008, the trial court granted the motion for summary judgment as to defendants Sovereign Real Estate Corporation (Sovereign), Pinnacle Real Estate Corporation (Pinnacle) and Westparke Development, Inc. (Westparke) as to all claims. As to the remaining defendants, summary judgment was granted only as to the unfair and deceptive trade practices claim. On 29 July 2008, defendants Walter Poole Realty, Inc., Walter Roy Poole, Jr., and W. Roy Poole, Inc. (collectively referred to as appellants) appealed the denial of their motion for summary judgment as to the remaining claims. On 8 August 2008, plaintiff cross-appealed the granting of summary judgment as to her claim for unfair and deceptive trade practices.
We must first address plaintiff's motion seeking dismissal of appellants' appeal as interlocutory.
A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal. The reason for 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.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations and quotations omitted).
"`An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" Edwards v. GE Lighting Systems, Inc., ___ N.C. App. ___, ___, 668 S.E.2d 114, 116 (2008) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Appealing an interlocutory order is permitted in only two instances: (1) the trial court makes a Rule 54(b) certification and "enter[s] 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[,]" N.C.R. Civ. P. 54(b), or (2) "`the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.'" Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (citations omitted). In the instant case, the trial court did not make a Rule 54(b) certification. Our review is thus limited to whether a substantial right is affected.
Appellants acknowledge that their appeal is interlocutory but make two arguments that the denial of a portion of their summary judgment motion affects a substantial right.
The denial of a motion to dismiss or a motion for summary judgment based upon the defense of collateral estoppel may affect a substantial right, permitting appellate review of an interlocutory appeal. Turner v. Hammocks Beach Corp., ___ N.C. App. ___, ___, 664 S.E.2d 634, 638 (2008) () (emphasis added). Turner held that where defendant's motion to dismiss pled a prior final adjudication on the merits as collateral estoppel, the possibility of a result inconsistent with a prior trial court's decision was presented, and a substantial right was affected. Id. at ___, 664 S.E.2d at 638-39.
In the instant case, appellants pled the Release as a bar to plaintiff's claim. In Foster v. Crandell, we held that no substantial right was affected where: "Because defendants rely solely on a settlement agreement with an accompanying dismissal, there is no possibility of a result inconsistent with a prior jury verdict or a prior decision by a judge." 181 N.C. App. 152, 163, 638 S.E.2d 526, 534, disc. review denied, 361 N.C. 567, 650 S.E.2d 602 (2007). Thus, the Release pled by appellants as an affirmative defense cannot be the basis of a substantial right based upon collateral estoppel supporting an interlocutory appeal.
Instead, appellants contend that plaintiffs had a right to appeal the interlocutory order dismissing her claims against Sovereign, Pinnacle and Westparke. Based upon plaintiff's failure to appeal this dismissal, appellants assert that plaintiff is estopped from denying that her claims against the remaining defendants should also be dismissed. Appellants state the basis of this argument to be:
Given that the Trial Court's Order does not state the basis for granting summary judgment as to the Corporations [i.e. Sovereign, Pinnacle and Westparke], it is not inappropriate to assume that the Trial Court's granting summary judgment for the Corporations was the affirmative defense of Release.
We first note that plaintiff was not required to immediately appeal the trial court's dismissal of the claims against Sovereign, Pinnacle and Westparke. Ward v. Wake Cty. Bd. of Educ., 166 N.C. App. 726, 728, 603 S.E.2d 896, 899 (2004) (citations omitted), disc. review denied, 359 N.C. 326, 611 S.E.2d 853 (2005). If the failure of a plaintiff to appeal an interlocutory order can constitute an estoppel, as...
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