HUNTER-MCDONALD, INC.,
Plaintiff
v
.
EDISON FOARD, INC.,
Defendant
Harkey Lambeth, L.L.P., by Jeffrey S. Williams-Tracy, for
plaintiff-appellant.
Newitt & Bruny, by John G. Newitt, Jr., and Roger H. Bruny,
for defendant-appellee.
CALABRIA, Judge.
On 4 April 2001, Hunter-McDonald Inc., (“plaintiff”), a
subcontractor, filed an amended complaint against Edison Foard,
Inc., (“defendant”), a general contractor, for breach of two
contracts. The first contract was pursuant to a written agreement
for work performed at the Charlotte/Douglas International Airport
(“the airport job”). The second contract was pursuant to an oral
agreement for work performed at a job site referred to as ARC
International (“the ARC job”). On 17 May 2001, defendant filed an
answer and counterclaim asserting plaintiff had been overpaid forwork on the ARC job. On 18 March 2002, defendant motioned for
summary judgment on all claims. On 24 April 2002, Judge Robert P.
Johnston (“Judge Johnston”) granted summary judgment for defendant
on plaintiff's first claim regarding the airport job, but denied
summary judgment on the remaining claim and counterclaim concerning
the ARC job. Plaintiff appeals.
“The order of the superior court granting the defendant's
motion for summary judgment did not dispose of all the claims in
the case, making it interlocutory.” DKH Corp. v. Rankin-Patterson
Oil Co., 348 N.C. 583, 584, 500 S.E.2d 666, 667 (1998).
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C.
159, 161, 522 S.E.2d 577, 578 (1999).
Notwithstanding this cardinal tenet of
appellate practice, immediate appeal of
interlocutory orders and judgments is
available in at least two instances. First,
immediate review is available when the trial
court enters a final judgment as to one or
more, but fewer than all, claims or parties
and certifies there is no just reason for
delay. [N.C. Gen. Stat. § 1A-1, Rule 54(b)
(2001)] . . . Second, immediate appeal is
available from an interlocutory order or
judgment which affects a 'substantial right.'
[N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1)
(2001).]
Id., 351 N.C. at 161-62, 522 S.E.2d at 579.
When more than one claim for relief is
presented in an action, . . . the court mayenter 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[.]
N.C. Gen. Stat. § 1A-1, Rule 54(b)(2001). In the case at bar,
after determining summary judgment was proper on the airport job
claim, Judge Johnston stated, “[i]t appear[s] to the Court that
there is no reason for delaying entry of the final judgment on the
Plaintiff's First Claim for Relief.” This statement certifies the
judgment is subject to immediate appeal pursuant to Rule 54(b).
N.C. Gen. Stat. § 1A-1, Rule 54(b); See also Pitt v. Williams, 101
N.C. App. 402, 399 S.E.2d 366 (1991) (holding that where the trial
court did not determine there was “no just reason for delay” no
immediate right of appeal exists.)
Plaintiff appeals asserting the trial court erred in granting
summary judgment for defendant. “Summary judgment is properly
granted when the pleadings, depositions, answers to
interrogatories, admissions and affidavits show no genuine issue of
material fact exists, and the movant is entitled to judgment as a
matter of law. . . . [T]he evidence is viewed in the light most
favorable to the non-movant.” Bostic Packaging, Inc. v. City of
Monroe, 149 N.C. App. 825, 830, 562 S.E.2d 75, 79, disc. review
denied, 355 N.C. 747, 565 S.E.2d 192 (2002). The trial court determined summary judgment was proper because
the claim was discharged pursuant to N.C. Gen. Stat. § 25-3-311
(2001). The statute provides, in pertinent part:
(a) If a person against whom a claim is
asserted proves that (i) that person in good
faith tendered an instrument to the claimant
as full satisfaction of the claim, (ii) the
amount of the claim was unliquidated or
subject to a bona fide dispute, and (iii) the
claimant obtained payment of the instrument,
the following subsections apply.
(b) . . . the claim is discharged if the
person against whom the claim is asserted
proves that the instrument or an accompanying
written communication contained a conspicuous
statement to the effect that the instrument
was tendered as full satisfaction of the
claim.
N.C. Gen. Stat. § 25-3-311 (a)-(b)
(See footnote 1)
. Reading these subsections
together, defendant bore the burden of proving: (1) defendant in
good faith tendered an instrument to the claimant as full
satisfaction of the claim; (2) the instrument or an accompanying
written communication contained a conspicuous statement stating it
was tendered as full satisfaction of the claim; (3) the claim wasunliquidated or subject to a bona fine dispute; and (4) plaintiff
obtained payment of the instrument.
Defendant contends it satisfied the statutory requirements by
submitting to plaintiff payment for the airport job on 8 October
1999 in the form of a check for $11,500.00, with an attached stub
which read as follows: “MEMO : FULL AND FINAL PAYMENT ON US AIRWAYS
TRAVEL CLUB[.]” Although plaintiff admits it obtained payment by
this instrument, plaintiff contends summary judgment was improper
because a genuine issue of material fact remains regarding whether
(1) the claim was unliquidated or subject to a bona fine dispute;
(2) the instrument submitted in full satisfaction of the claim
contained a conspicuous statement stating such; (3) defendant
tendered the instrument in good faith. Plaintiff is correct.
First, regarding whether the claim was unliquidated or
subject to a bona fide dispute as required by N.C. Gen. Stat. § 25-
3-311(a)(ii). “Section 3-311 does not apply to cases in which the
debt is a liquidated amount and not subject to a bona fide dispute.
Section (a)(ii). Other law applies to cases in which a debtor is
seeking discharge of such a debt by paying less than the amount
owed.” N.C. Gen. Stat. § 25-3-311, Official Comment 4. Therefore,
the “person against whom a claim is asserted” must prove, inter
alia, that “the amount of the claim was unliquidated or subject to
a bona fide dispute” prior to submission of the instrumentrepresenting full and final payment. N.C. Gen. Stat. § 25-3-
311(a). See also Futrelle v. Duke University, 127 N.C. App. 244,
249-50, 488 S.E.2d 635, 639 (1997) (“[t]he requirement, that a
dispute exist, is satisfied in that, prior to payment of this
amount, the parties disputed what remedy, if any, plaintiff was
entitled to receive[.]” (emphasis added)). It is not enough for
defendant to demonstrate the parties presently disagree as to the
amount due, but rather defendant must prove “the amount of the
claim was unliquidated or subject to a bona fide dispute[.]” N.C.
Gen. Stat. § 25-3-311(a)(ii) (emphasis added).
It is unclear from the record on appeal whether this claim was
unliquidated or subject to a bona fide dispute prior to defendant's
submission of the check as full and final payment. Despite
sketches, invoices, bills and checks comprising the record on
appeal, there is nothing in the record to indicate the parties
disputed the amount due prior to 8 October 1999 when defendant
submitted the check in “full and final payment” of work on the
airport job. It is apparent the parties now disagree, as plaintiff
claims defendant still owes plaintiff $34,325.00 and defendant
asserts it overpaid by $15,295.00. However, defendant failed to
meet its burden pursuant to N.C. Gen. Stat. § 25-3-311 to prove
“the amount of the claim was unliquidated or subject to a bona fidedispute[.]” Therefore, the trial court improperly granted summary
judgment as a genuine issue of material fact exists.
Defendant failed to meet its burden of proving the claim was
subject to a bona fide dispute prior to submission of payment,
pursuant to N.C. Gen. Stat. § 25-3-311(a)(ii). Therefore, we hold
the trial court improperly granted summary judgment. Accordingly,
we need not reach plaintiff's remaining assignments of error that
defendant also failed to prove the instrument was tendered in good
faith, as required by N.C. Gen. Stat. § 25-3-311(a)(i), and the
statement on the check stub was not conspicuous, as required by
N.C. Gen. Stat. § 25-3-311(b).
Reversed.
Judges McCULLOUGH and TYSON concur.
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