Oakley v Barkley, 167 NC App 109 (04-67) 11/16/2004

Appeal by plaintiff from orders entered 16 July 2003 and 9 December 2003 by Judge W. Russell Duke, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 23 September 2004.

Trimpi, Nash & Harman, L.L.P., by John G. Trimpi, for plaintiff.

John W. Halstead Jr. for defendants.

    LEVINSON, Judge.

    Plaintiff Etta C. Oakley appeals from two orders entered in Pasquotank County Superior Court. The first order, entered 16 July 2003, required the partners of defendant River Enterprises to evaluate plaintiff's partnership interest and to pay her the difference between the value of her interest and the amount already paid to her. The second order, entered 9 December 2003, denied plaintiff's motion to amend the trial court's findings of fact. We conclude that plaintiff's appeal must be dismissed as interlocutory.
    Plaintiff was a general partner in River Enterprises, a North Carolina General Partnership, which was governed by a partnershipagreement. “Article Nine” of the partnership agreement included the following language:
    [A]ny partner, regardless of capital contribution, shall be entitled to repayment of the amount invested [in the partnership] together with interest at the rate of twelve per cent [sic] (12%) per annum from the date of the investment, six months from the receipt of a written demand for the same, sent by registered mail to Craig C. Barkley. The return of said money shall terminate any partnership interest of the demanding party, who shall then execute a quitclaim deed to the partnership of his or her interest at the time the money has returned. This return of capital contribution plus twelve per cent [sic] (12%), shall be reduced by any monies previously paid by the partnership to the withdrawing partner, or shall serve as an offset as far as applicable to any loss by the partnership.

    Any retiring partner may claim the value of his partnership to be in excess of twelve per cent [sic] (12%) return on his investment as aforementioned. Upon such a request, the partnership's share of the retiring partner shall be evaluated by the remaining partners and a fair market value for the retiring partner's interest shall be paid to him or her.

By way of a letter dated 16 November 2000, plaintiff demanded payment of profits and return of her investment plus interest accrued. Plaintiff asserted that her capital contribution to River Enterprises was $70,000.
    On 20 February 2002, plaintiff filed a complaint against defendants Craig C. Barkley and River Enterprises. In her first cause of action, plaintiff alleged that defendant Barkley, a general partner and the managing partner of defendant River Enterprises, promised to pay her $700 each month. This amount allegedly represented the monthly amount of interest on her capital contribution calculated at twelve percent per annum. According to plaintiff, Barkley discontinued making the monthly $700 payments,such that he owed her $27,000. Plaintiff sought a judgment for money damages against defendant Barkley for $27,000 plus the lawful rate of interest.
    In her second cause of action, plaintiff alleged that, pursuant to the partnership agreement, she was entitled to her $70,000 contribution plus any accrued interest. Plaintiff sought a judgment for money damages against the partnership for $97,000, less any damages awarded pursuant to her suit against Barkley. The $97,000 figure included the entire capital contribution, together with interest calculated at twelve percent per annum, less the amount of interest which plaintiff received from Barkley.
    In an order entered 21 April 2003, the trial court made the following conclusions of law:
    1.    . . . Defendant Craig C. Barkley has no individual liability to the Plaintiff. . . .

    2.    . . . Plaintiff . . . is entitled to have her partnership interest evaluated by the remaining partners of River Enterprises pursuant to the terms of Article Nine of the partnership agreement . . . and to be paid the difference between the value of her partnership interest and the sum . . . previously paid and received [by her].

The trial court dismissed the claim against Barkley and ordered the remaining partners of River Enterprises to evaluate plaintiff's partnership interest and to pay her its value less the amount previously paid to her.
    From this order, plaintiff now appeals contending, inter alia, that the trial court erroneously applied the wrong provision of Article Nine of the partnership agreement to determine that she is limited to having her partnership interest evaluated by theremaining partners where there is no evidence that she requested such an evaluation and the agreement provides for a return of investment without an evaluation. Because we conclude that plaintiff's appeal is interlocutory, disposition on the merits is inappropriate.

    An order “is either interlocutory or the final determination of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (2003). A final judgment “disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court[,]” while an interlocutory order “does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C. 354, 362, 57 S.E.2d 377, 381 (1950).
    In general, there is no right to appeal from an interlocutory order. N.C.G.S. § 1A-1, Rule 54(b) (2003); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). The general prohibition against interlocutory appeals seeks “to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.” Lee v. Baxter, 147 N.C. App. 517, 519, 556 S.E.2d 36, 37 (2001) (internal citation omitted). However, there are two significant exceptions to this rule. First, an interlocutory order is immediately appealable “when the trial court enters 'a final judgment as to one or more but fewer than all of the claims or parties' and the trial courtcertifies in the judgment that there is no just reason to delay the appeal.” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (quoting Rule 54(b)). Second, 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).
    Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231 (2001). This Court has previously held that:
        A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. The right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed. Our courts have generally taken a restrictive view of the substantial right exception. The burden is on the appealing party to establish that a substantial right will be affected.

Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (internal citations and quotation marks omitted). “When an appeal is interlocutory, the statement [of the grounds for review in an appellant's brief] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” N.C.R. App. P. 28(b)(4).    In the present case, plaintiff filed a complaint seeking money damages. Although the trial court ruled in plaintiff's favor, the trial court has not entered a final judgment against River Enterprises for the amount owed to plaintiff. Without such a judgment, there has been no final adjudication of the rights of the parties. As such, the trial court's order does not dispose of the cause as to all the parties, but instead requires further judicial action in order to settle and determine the entire controversy. Moreover, the trial court has not certified that there is no just reason to delay the appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, and our review of the record reveals no substantial right.
    “Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves.” State v. School, 299 N.C. 351, 360, 261 S.E.2d 908, 914 (1980) (citation omitted). We have no alternative except to dismiss plaintiffs' interlocutory appeal.
    Dismissed.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***