Plaintiff Johnson and H. Brooks Johnson (“defendant”) were
married. Defendant filed a domestic complaint (99-CVD-9191) on 17
June 1999 seeking custody of the minor children, support of the
minor children, post-separation support, alimony, and equitable
distribution pursuant to Chapter 50 of the North Carolina General
Statutes. Additionally, defendant requested: (1) a resultingtrust on the marital residence, alleging that she had paid the
purchase price and that plaintiff Johnson had wrongfully taken
title of the marital residence, and (2) a constructive trust on the
separate assets of plaintiff Johnson, alleging that plaintiff
Johnson has fraudulently converted the assets of defendant's
brokerage account and incurred a substantial indebtedness in her
name.
While the domestic complaint was pending, defendant filed a
civil action (99-CVS-10351) against plaintiff Johnson and his
employer, Prudential Securities, Inc. (“Prudential”), on 29 July
1999. Defendant sought actual and punitive damages alleging
constructive fraud, breach of fiduciary duty, conversion, common
law fraud, negligence as to Prudential, negligent
misrepresentation, unfair and deceptive trade practices, breach of
contract as to Prudential, and violation of the North Carolina
Securities Laws. Defendant alleges that plaintiff Johnson forged
her name on checks and made unauthorized withdrawals from her
brokerage account with Prudential which was managed by plaintiff
Johnson.
On 3 December 1999, defendant filed a voluntary dismissal,
without prejudice, of her civil complaint (99-CVS-10351), pursuant
to Rule 41(a) of the North Carolina Rules of Civil Procedure.
Defendant filed a statement of claim for arbitration (99-05598)
against plaintiff Johnson and Prudential with the National
Association of Securities Dealers, Inc. (“NASD”) on 14 December
1999. Defendant filed an amendment to the statement of claim toadd J.J.B. Hilliard, W.L. Lyons, Inc. (“Hilliard”), plaintiff
Johnson's subsequent employer, as a respondent to the arbitration
action. Defendant's statement of claim brings forth the same
claims and essentially the same facts as those raised in her civil
complaint.
In response to plaintiff Johnson's motion to dismiss or elect
forum, on 20 September 2000, defendant filed a voluntary dismissal,
pursuant to Rule 41(a) of the North Carolina Rules of Civil
Procedure, of any and all claims of resulting trust, constructive
trust, and unequal distribution of the marital property based upon
plaintiff Johnson's actions with respect to her brokerage account
in her domestic complaint (99-CVD-9191).
Plaintiff Johnson, thereafter, filed a motion to dismiss the
arbitration with the NASD raising the affirmative defense of
res
judicata based on the “two dismissal” rule found in Rule 41. A
hearing was scheduled before the NASD for 8 December 2000. On 7
December 2000, plaintiff Johnson withdrew his motion to dismiss
stating that the issue was more appropriate for a court with
appropriate jurisdiction.
On 20 December 2000, plaintiff Johnson, Prudential, and
Hilliard filed a complaint for declaratory judgment (00-CVS-19811)
in superior court. Plaintiffs sought a declaratory judgment of no
liability by operation of Rule 41, a preliminary injunction
enjoining the arbitration action before the NASD, and a permanent
injunction enjoining defendant from prosecuting her claims before
the NASD or any forum based on the doctrine of
res judicatapursuant to Rule 41.
Plaintiffs filed a motion for summary judgment and defendant
filed a motion to dismiss pursuant to Rules 12(b)(1), 12(b)(3),
12(b)(6), and 12(c) of the North Carolina Rules of Civil Procedure.
The superior court entered an order on 7 February 2001, which: (1)
denied defendant's motion to dismiss pursuant to Rule 12(b)(1),
lack of subject matter jurisdiction; (2) granted plaintiffs' motion
for summary judgment with respect to defendant's claims for
resulting trust or constructive trust based upon plaintiff
Johnson's “fraudulent and deceitful acts” with respect to
defendant's brokerage accounts with both Prudential and Hilliard;
(3) except as specifically allowed, denied plaintiffs' motion for
summary judgment; (4) ordered a permanent injunction enjoining
defendant from prosecuting claims for resulting trust or
constructive trust based upon the “fraudulent and deceitful acts”
of plaintiff Johnson; and (5) except as specifically allowed denied
the request for an injunction. Plaintiff Johnson appeals. We find
that the trial court's order is interlocutory and dismiss plaintiff
Johnson's appeal.
An order which does not entirely dispose of the case as to all
parties and issues is interlocutory.
Veazey v. Durham, 231 N.C.
357, 57 S.E.2d 377 (1950). Our courts will not hear appeals from
interlocutory orders unless the orders affect a substantial right,
Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338
(1978), which may be lost or prejudiced by exception to the order's
entry.
See Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593(1982). This rule promotes judicial economy by eliminating
fragmentary appeals and preserves the entire case for determination
in a single appeal.
Harrell v. Harrell, 253 N.C. 758, 761, 117
S.E.2d 728, 730 (1961).
Typically, “the denial of a motion for summary judgment is a
nonappealable interlocutory order.”
Northwestern Financial Group,
Inc. v. County of Gaston, 110 N.C. App. 531, 535, 430 S.E.2d 689,
692 (1993). Our Supreme Court has stated that “the denial of a
motion for summary judgment based on the defense of
res judicata
may affect a substantial right . . . .”
Bockweg v. Anderson, 333
N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (emphasis supplied);
cf.
Community Bank v. Whitley, 116 N.C. App. 731, 449 S.E.2d 226 (1994)
(dismissing appeal as interlocutory because facts of case would not
lead to “possibility of inconsistent verdicts”).
A substantial right is likely to be affected where a
possibility of inconsistent verdicts exists if the case proceeds to
trial.
Green, 305 N.C. at 608, 290 S.E.2d at 596. The facts of
this case would not lead to such an outcome, and do not present a
compelling case for premature appellate review. Accordingly,
plaintiff Johnson's appeal is dismissed as interlocutory.
Dismissed.
Chief Judge EAGLES and Judge McGEE concur.
Report per Rule 30(e).
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