Balmer v Anderson Creek, Inc., (02-1620) 12/02/2003

Appeal by plaintiff from judgment entered 30 July 2002 by Judge Jack A. Thompson in the Superior Court in Cumberland County. Heard in the Court of Appeals 10 September 2003.

Rose, Ray, O'Connor & McCauley, P.A., by Steven J. O'Connor, for plaintiff-appellant.

Mitchell, Brewer, Richardson, Adams, Burge & Boughman, by Coy E. Brewer, Jr., Ronnie M. Mitchell and Charles M. Brittain, for defendant-appellee.

    HUDSON, Judge.

    Appellant Balmer d/b/a Balmer Electric LLC (“Balmer”) entered into a contract with appellee Anderson Creek, Inc. (“Anderson Creek”) on 16 October 2000 to provide electrical wiring and installation at the Anderson Creek clubhouse in Spring Lake, North Carolina. Balmer began the electrical work 16 October 2000, but halted his performance in February 2001. Balmer filed a complaint in district court for money owed under the contract on 14 June 2001. Anderson Creek answered, denying the allegations and pleading failure of consideration and waiver as bars to recovery, and counterclaimed for breach of contract. After Anderson Creek'smotion for removal of the case to superior court was granted, Anderson Creek moved for summary judgment. The court granted summary judgment for Anderson Creek 30 July 2002. Balmer appeals.
    The contract between Balmer and Anderson Creek listed the contractor's name as Balmer Electric, LLC, and the same designation appeared in several other places throughout the contract. Balmer had never filed any articles of incorporation for his business as a limited liability company. However, on 27 April 1999, Balmer recorded an instrument titled “Certificate of Assumed Name for a Limited Liability Company” in the Cumberland County office of the Register of Deeds, listing his business as “Balmer Electric, LLC,” and giving his own name and address. Balmer signed the form as “manager” on behalf of the alleged LLC. After Balmer and Anderson Creek sued and countersued under the contract, Anderson Creek moved for summary judgment, contending that Balmer Electric, LLC, one of the alleged parties to the contract never existed, and thus, no contract ever existed.
    Because Anderson Creek's counterclaims remain, there has been no final determination of the rights of the parties and the superior court's order is interlocutory. In general, “there is no right to appeal from an interlocutory order.” Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). However, an interlocutory order may be immediately appealed if “the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Southern Uniform Rentals v. Iowa Nat'l Mutual Ins. Co.,90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988) “This Court has held that the right to avoid the possibility of two trials on the same issues involved a substantial right if the same issues are present in both trials.” Jenco v. Signature Homes, 122 N.C. App. 95, 99, 468 S.E.2d 533, 535 (1996). When the same factual issues are involved in the claims dismissed and those remaining, as they are here, it is possible “that different juries could reach different results-- thereby resulting in inconsistent verdicts on the same factual issues.” Id. Therefore, Balmer's appeal involves a substantial right and is properly before this Court.
    In his first assignment of error, Balmer alleges that Anderson Creek was not entitled to summary judgment on the grounds that Balmer Electric, LLC, never existed and thus, no contract between it and Anderson Creek could have existed. For the reasons below, we hold that Balmer has the right to maintain his suit against Anderson Creek, and reverse the superior court's summary judgment order.
    “Generally, one who contracts as an agent in the name of a nonexistent or fictitious principal, or a principal without legal status or existence, is personally liable on the contract so made.” 3 Am. Jur. 2d Agency § 295 (2002). This general rule “is founded upon the presumption that the parties intended to create an enforceable obligation.” Id. Because one who contracts as an agent for a non-existent principal renders himself personally liable, in turn, such an agent has a reciprocal right to enforce the contract. See N.C. Gen. Stat. § 66-71(b) (1999) (“The failureof any person to comply with the provisions of this Article does not prevent a recovery by such person in any civil action brought in any of the courts of this State.”) Thus, when Balmer signed the contract with Anderson Creek as the purported agent for “Balmer Electric, LLC,” a fictitious principal without legal status or existence, Balmer individually became a party to that contract and may now maintain a suit under the contract.
    Because we reverse and remand the superior court's order on the basis of the appellant's first assignment of error, we need not reach Balmer's remaining assignment of error.
    Reversed and remanded.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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