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:
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.
. . .
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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