An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-690

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

C&M INVESTMENTS OF HIGH
POINT, INC., a N.C. Corporation,

        Plaintiff,

v .                             Guilford County
                                No. 01 CVS 413
U.S. FURNITURE INDUSTRIES, INC.,
        
        Defendant.

    Appeal by defendant and cross-appeal by plaintiff from order entered 30 January 2002 by Judge Dennis J. Winner in Guilford County Superior Court. Appeal by plaintiff from order entered 16 February 2001 by Judge Mark E. Klass in Davidson County Superior Court. Heard in the Court of Appeals 18 February 2003.

    Cunningham Crump & Cunningham, P.L.L.C., by R. Flint Crump and J. Calvin Cunningham, for plaintiff appellant.

    Adams Kleemeier Hagan Hannah & Fouts, P.L.L.C., by David S. Pokela and M. Jay DeVaney, for defendant appellant.

    PER CURIAM.

    On 29 December 1999, C&M Investments of High Point, Inc. (“plaintiff” or “C&M”) entered into a lease agreement with U.S. Furniture Industries, Inc. (“defendant” or “USFI”) whereby USFI leased a warehouse in High Point from C&M for a term of four and one-half years. The lease term began on 1 April 2000 and ran through 30 September 2004. According to the affidavit of David Lees (“Lees”), USFI's president, USFI occupied the premisesthroughout 2000, but USFI determined near the end of 2000 that “it would be necessary to cease doing business.” USFI's attorney informed C&M's president, via letter dated 17 January 2001, that USFI was in the process of liquidating its assets and that USFI intended to vacate the leased premises on or about 30 April 2001. The letter stated that USFI would continue to make rental payments and reimburse C&M for any necessary insurance payments during the liquidation process. By letter dated 11 February 2001, at which time USFI was current in its rent payments, Lees submitted a lease termination offer to C&M.
    On 12 February 2001, C&M filed suit against USFI for breach and anticipatory breach of the lease agreement. On 13 February 2001, upon C&M's affidavit, an order of attachment was entered by Brian L. Shipwash, Davidson County Clerk of Superior Court, requiring the Guilford County Sheriff's Department to attach USFI's property in Guilford County up to C&M's eight hundred eighty thousand dollar ($880,000.00) demand. Pursuant to the order of attachment, on 14 February 2001 the Guilford County Sheriff levied on USFI's personal property, evicted USFI from the leased premises, and padlocked the premises.
    On 15 February 2001, USFI moved to dissolve the order of attachment. On 16 February 2001, Judge Klass entered an order dissolving attachment. Pursuant to Judge Klass' order, possession of the leased premises was returned to USFI on 19 February 2001. Thereafter, Lees informed C&M's property manager that USFI “felt strongly that by the order of attachment, that C&M had breached thelease and [USFI was] at tenancy at will.” USFI then paid rent for March, and vacated the premises before the April rent became due. Defendant has not made any subsequent rental payments.
    On 16 March 2001, USFI filed an answer denying the material allegations of C&M's complaint and asserting eleven affirmative defenses. USFI's answer also asserted several counterclaims against C&M, all of which related to USFI's contention that C&M wrongfully attached USFI's property and wrongfully evicted USFI from the leased premises.
    On 4 April 2001, USFI filed an amendment to its answer and counterclaims, whereby USFI asserted the following additional affirmative defense and counterclaim:

    TWELFTH AFFIRMATIVE DEFENSE
    At the moment that USFI was evicted via the Order of Attachment, the Lease was terminated. Once USFI regained possession of the leased premises, USFI possessed the premises as a tenancy at will which was terminated on March 30, 2001. Based on the termination of the resulting tenancy at will, there is no continuing rent obligation. Indeed, USFI is entitled to a return of its security deposit.

    . . .

    SIXTH CLAIM FOR RELIEF
(Return of Security Deposit)

    27. Defendant realleges and incorporates herein each of the foregoing allegations.

    28. At the moment that USFI was evicted via the Order of Attachment, the Lease was terminated. Once USFI regained possession of the leased premises, USFI possessed the premises as a tenancy at will which was terminated on March 30, 2001. Based on the termination of the resulting tenancy at will, there is no continuing rent obligation. Indeed, USFI is entitled to a return of its security deposit.
    On 24 January 2002, the parties' cross motions for partial summary judgment came on for hearing. USFI's motion was styled “Motion for Partial Summary Judgment on the Issue of Whether the Lease was Terminated by Virtue of the Wrongful Attachment.” C&M moved for partial summary judgment “on the grounds that there are no genuine issues as to any material fact regarding [USFI's] liability” for breach of the lease. On 30 January 2002, the trial court entered an order granting C&M's motion for partial summary judgment and denying defendant's motion. The order stated, in pertinent part, as follows:
        The Court concludes as a matter of law that the order of attachment and the execution thereof did not terminate the lease but at most made the lease terminable by the Defendant. The Court further concludes that the act of the Defendant in paying the March rent waived any breach of the lease by the Plaintiff and reaffirmed the lease and the Defendant's tenancy thereunder. The Court further concludes that in no way was a “tenancy at will” created by the actions of either or both of the parties. Therefore, the Court concludes that there is no genuine issue of material fact and with respect to the question of liability for breach of lease, the Plaintiff is entitled to judgment as a matter of law. (Emphasis added)

    Thereafter, the trial court, exercising its discretion under N.C. Gen. Stat. § 1A-1, Rule 54(b), certified that “there is no just reason for delay of immediate appeal of the Order and Judgment entered on January 30, 2002.” From this 30 January 2002 order granting C&M's motion for partial summary judgment and denying USFI's motion for partial summary judgment, USFI appeals. C&M cross-appeals from (1) the 30 January 2002 order, assigning as error the trial court's failure to decide the parties' cross-motions on a number of alternative bases; and (2) the 16 February 2001 order dissolving attachment.
    It is well settled that “[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.” Estate of Graham v. Morrison, __ N.C. App. __, __, 576 S.E.2d 355, __ (2003) (quoting Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) (citations omitted)). Likewise, the denial of a motion for summary judgment is also a nonappealable interlocutory order. Northwestern Financial Group v. County of Gaston, 110 N.C. App. 531, 535, 430 S.E.2d 689, 692, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993).
    There are, however, two situations in which a party may properly seek appellate review of an interlocutory order. First, in actions involving more than one claim or multiple parties, if a final judgment is entered as to one, but not all, of the claims or parties and the trial court certifies that “there is no just reason for delay[,]” such judgment is then subject to immediate appellate review. N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). Second, immediate appellate review is appropriate “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); N.C. Gen. Stat. § 1-277 (2001); N.C. Gen. Stat. § 7A-27 (2001).     Although a trial court's certification, pursuant to Rule 54(b), of an order for immediate appeal permits the parties to prosecute an interlocutory appeal, Rule 54(b) certification does not render a trial court's decree immediately appealable if the decree is not a final judgment. Priest v. Sobeck, __ N.C. App. __, __, 571 S.E.2d 75, 78 (2002). Both C&M and USFI appeal from the trial court's 30 January 2002 order. We must therefore determine whether the order granting partial summary judgment in C&M's favor and denying USFI's cross-motion was a final judgment or, in the alternative, whether a substantial right of either party will be affected absent immediate appellate review.
    It is well settled that “[a] final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). In the case at bar, the trial court's order stated “with respect to the question of liability for breach of lease, the Plaintiff [C&M] is entitled to judgment as a matter of law.” This Court has previously held that where, as here, a grant of partial summary judgment resolves the issue of liability, but leaves unresolved the issue of damages, “this is not a final judgment and the trial court's Rule 54(b) certification is ineffective.” CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171-72, 517 S.E.2d 151, 154 (1999); see also Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d 443, 448 (1979).     We must next determine whether a substantial right would be affected absent immediate appeal of the interlocutory order. The substantial right test “is satisfied when overlapping issues of fact between decided claims and those remaining create the possibility of inconsistent verdicts from separate trials.” Mountaire Farms of N.C., Inc. at 172, 517 S.E.2d at 154. Where, as here, an order resolves the issue of liability and leaves only the issue of damages undetermined, we have held that there is no danger of inconsistent verdicts, and no substantial right is affected. Id. Accordingly, we hold that both USFI's and C&M's appeals from the 30 January 2002 order granting partial summary judgment in C&M's favor and denying USFI's cross-motion for summary judgment are dismissed as interlocutory.
    C&M also appeals from the 16 February 2001 order dissolving attachment. C&M acknowledges in its brief that this order “does not completely dispose of the case,” but nevertheless argues that “C&M is entitled to appeal [the 16 February 2001 order dissolving attachment] at this time, despite its interlocutory nature,” because absent an immediate appeal, C&M will be deprived of a substantial right. C&M contends that the “substantial right” affected is C&M's “right to ensure that should [C&M] be successful in [its] suit that there will be something to recover from [USFI]” by preventing USFI “from dispos[ing] of . . . all of its assets by the time the case is concluded in the trial court.”
    In determining whether a “substantial right” is affected for purposes of allowing an interlocutory appeal, our Supreme Court hasstated “[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.” Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). In the case at bar, the order dissolving attachment was entered on 16 February 2001, just four days after C&M filed its complaint and a few weeks after USFI decided to begin liquidation. Over two full years have now passed, during which time liquidation of USFI's assets has presumably been completed. In any event, the record is devoid of any evidence that USFI retains any assets out of which C&M may recover damages, should they be awarded in further trial proceedings. Our research has not uncovered any cases holding that an order dissolving attachment under these circumstances affects a substantial right such that it should be immediately appealable, and we do not find that a substantial right was affected here. Accordingly, we hold that the 16 February 2001 order dissolving attachment is dismissed as interlocutory.
    Dismissed.
    Panel consisting of:
    Hunter, Bryant, Elmore
Report per Rule 30(e).
    

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