Appeal and Error--appealability--interlocutory order--no substantial right affected
Even though the record does not indicate how the trial court arrived at the amount of
plaintiffs' attachment bond, plaintiffs cannot immediately appeal from the trial court's
interlocutory order modifying the bond because it does not affect a substantial right since: (1) the
validity of the order is not determined until after a final judgment is entered in the case; and (2)
the trial court is not required to make findings of fact under N.C.G.S. § 1A-1, Rule 52(a) in an
order modifying a bond unless a party requests findings of fact.
Jones, Key, Melvin & Patton, P.A., by Fred H. Jones, for
plaintiff-appellants.
Clark Law Firm, P.A., by Justin D. Robertson, for defendant-
appellees.
HUNTER, Judge.
Sandra K. Collins and Hugh Collins (“plaintiffs”) appeal from
the order wherein the superior court modified their attachment
bond. We dismiss on the grounds that this appeal is interlocutory.
Plaintiffs filed the present action on 15 October 1998
alleging, in pertinent part, that they are creditors of R & S Auto
Parts, and that defendants Dennis and Michael Overholt purchased
all of the assets of R & S Auto Parts without proper notice to
plaintiffs as required by the North Carolina Bulk Sales Act. In
conjunction with the filing of their complaint, plaintiffs filed an
“Affidavit in Attachment Proceeding” seeking to have the contentsof the auto parts store attached on the basis that defendants are
not North Carolina residents. They requested defendants' bond to
be set at $75,000.00. Plaintiffs filed with their affidavit the
$200.00 bond required by the clerk of court, and an order of
attachment was issued.
Defendants filed a motion to increase plaintiffs' bond and
following a hearing before the clerk of court, defendants'
attachment bond was fixed at $75,000.00 and plaintiffs' attachment
bond was raised to $50,000.00. Plaintiffs filed a notice of appeal
to the superior court and after a hearing on the matter, the court
entered an order requiring plaintiffs to post bond in the amount of
$10,000.00.
Plaintiffs contend that the clerk of court and superior court
committed reversible error in ordering a modification of the
attachment bond on the grounds that there was no evidence before
the court upon which to base a modification. Plaintiffs ask this
Court to reverse the order of the trial court and remand in order
for it to receive evidence on this issue.
First, we note that an order is interlocutory if it does not
determine the issues in an action, but instead merely directs some
further proceeding preliminary to the final decree. Waters v.
Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
Therefore, the order appealed in the present case is interlocutory.
Generally, there is no right to appeal from an interlocutory order,
Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950); however, it
may be appealed if either of two circumstances exist:
First, an interlocutory order can be
immediately appealed if the order is final asto some but not all of the claims or parties
and the trial court certifies there is no just
reason to delay the appeal. N.C.R. Civ. P.
54(b). Second, an interlocutory order can be
immediately appealed under N.C. Gen. Stat. §§
1-277(a) (1983) and 7A-27(d)(1) (1995) “if the
trial court's decision deprives the appellant
of a substantial right which would be lost
absent immediate review.”
Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695
(1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997)
(citations omitted).
No claim has been determined in the present case. Therefore,
Rule 54 is inapplicable and plaintiffs can only appeal the order if
they have been deprived of a substantial right pursuant to N.C.
Gen. Stat. §§ 1-277 and 7A-27(d)(1). This Court has stated that to
be immediately appealable on the foregoing basis, a party has the
burden of showing that: (1) the judgment affects a right that is
substantial; and (2) the deprivation of that substantial right will
potentially work injury to him if not corrected before appeal from
final judgment. Goldston v. American Motors Corp., 326 N.C. 723,
392 S.E.2d 735 (1990). Whether a substantial right will be
prejudiced by delaying appeal must be determined on a case by case
basis. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).
Plaintiffs in the present case have not indicated why the
increase and/or modification of their bond affects their
substantial rights. In a similar case, Stancil v. Stancil, 94 N.C.
App. 760, 381 S.E.2d 720 (1989), the plaintiff, a fifty percent
(50%) shareholder in a corporation, had brought suit to dissolve
the corporation. The trial court required the defendant, as a
fifty percent (50%) shareholder of a close corporation, to post a$150,000.00 bond in order to preserve the status quo and defendant
appealed. This Court held that the substantial rights of thedefendant were not affected and the order was a nonappealable
interlocutory order, stating:
The amount of the bond each [party] was
ordered to post reasonably approximates the
value of BSRI assets allegedly in his
possession, and, should the opposing sibling
be unsuccessful in obtaining judgment in his
favor, the bond will be cancelled. Under
these circumstances, “no substantial right
. . . can possibly be affected to the
slightest extent if the validity of the order
is not determined until after a final judgment
is entered in the case.”
Id. at 764, 381 S.E.2d at 722-23. In the present case, the record
does not indicate how the court arrived at the amount of the bond
the plaintiff was ordered to pay. However, this fact does not
demonstrate that plaintiff's substantial rights may be adversely
affected if the present appeal is not considered.
Our Supreme Court, in Oestreicher v. Stores, 290 N.C. 118, 225
S.E.2d 797 (1976), noted the proper procedure for perfecting an
appeal of a judgment concerning the vacation or modification of a
bond:
“In this and like cases, it is the
province of the Judge in the Court below to
hear the evidence, usually produced before him
in the form of affidavits, find the facts and
apply the law arising thereupon. If a party
should complain that the Court erred in soapplying the law, then he should assign error
and ask the Court to state its findings of the
material facts in the record, so that he might
have the benefit of his exceptions, on appeal
to this Court. In that case, it would be
error if the Court should fail or refuse to so
state its findings of fact, and the law
arising upon the same.
“Such practice affords the complaining
party reasonable opportunity to have errors of
law, arising in the disposition of incidental
and ancillary matters in the action, corrected
by this Court, while, in very many cases, it
lessens the labor of the Court below,
expedites proceedings in the action and saves
costs.”
Id. at 143, 225 S.E.2d at 812 (citation omitted) (citing Millhiser
v. Balsey, 106 N.C. 433, 435, 11 S.E. 314, 315 (1890)).
Oestreicher does not indicate that modification of a bond affects
a substantial right. In that case, the trial court had granted the
defendant summary judgment on two of the three causes of action in
the suit but did not certify there was no just reason for delay as
required by Rule 54. While this Court had dismissed plaintiff's
appeal as interlocutory, Oestreicher v. Stores, 27 N.C. App. 330,
219 S.E.2d 303 (1975), our Supreme Court reversed, observing that
“plaintiff had a substantial right to have all three causes tried
at the same time by the same judge and jury.” Id. at 130, 225
S.E.2d at 805. As for the bond issue, the Court held: “Since
plaintiff failed to request findings of fact to justify the
modification of defendant's bond, it is presumed that the trial
judge found facts sufficient to support his order, and this is not
reviewable on appeal. . . . Error must be shown by the party
alleging it.” Id. at 143, 225 S.E.2d at 812. The reasoning in Oestreicher that the court is not required to
make findings of fact in an order modifying a bond correlates with
N.C.R. Civ. P. 52(a) concerning provisional remedies, which states
in pertinent part: “findings of fact and conclusions of law are
necessary on the granting or denying of a preliminary injunction or
any other provisional remedy only when required by statute
expressly relating to such remedy or requested by a party.” N.C.R.
Civ. P. 52(a)(2). Our review does not indicate that any statute
requires the judge to make findings of fact in a case such as the
one at bar. Plaintiffs mistakenly assert that N.C. Gen. Stat. §
1-440.36 (1996) and N.C. Gen. Stat. § 1-440.37 (1996) are
applicable to the present case. These statutes concern dissolution
of and modification of the order of attachment, respectively. N.C.
Gen. Stat. § 1-440.40(a), entitled “Defendant's objection to bond
or surety” states:
At any time before judgment in the principal
action, on motion of the defendant, the clerk
or judge may, if he deems it necessary in
order to provide adequate protection, require
an increase in the amount of the bond
previously given by or required of the
plaintiff.
N.C. Gen. Stat. § 1-440.40(a) (1996). Under this statute, the
trial court is not required to make findings of fact in order to
modify plaintiff's bond on the motion of the defendant, as is the
case here.
Based on the foregoing authority, we conclude that unless a
party requests findings of fact, the trial court is not required to
make them when it modifies plaintiff's bond on defendant's motion. Lack of findings in the present order does not demonstrate that
plaintiffs' substantial rights have been affected, as we presume
the trial court found facts sufficient to support its order.
Oestreicher, 290 N.C. 118, 225 S.E.2d 797.
“Piecemeal adjudication and unnecessary delay in proceedings
. . . serve to delay and frustrate the effective administration of
justice.” Dixon v. Dixon, 62 N.C. App. 744, 745, 303 S.E.2d 606,
607 (1983) (citation omitted). Plaintiffs have not asserted nor
shown that they will lose any rights if the order appealed from is
not reviewed before final judgment. We therefore hold that
plaintiffs' substantial rights are not affected, thus they have no
right to appeal the interlocutory order of the trial court. It is
the court's duty to dismiss an appeal sua sponte when no right of
appeal exists. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431
(1980). Accordingly, the present appeal is dismissed.
Dismissed.
Chief Judge EAGLES and Judge JOHN concur.
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