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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
PATRICIA JOHNSON, DORIS LARYEA, LOVIE H. JONES, and GERALDINE
COLLIER, Plaintiffs, v. LYNWOOD LUCAS and JOE PEACOCK, t/a
TRIANGLE TIMBER SERVICES, Defendants
Filed: 15 February 2005
Appeal and Error--appealability--partial summary judgment
Defendant's appeal was dismissed as interlocutory where his brief contained no
statement of grounds for appellate review of the interlocutory order (partial summary judgment)
and no discussion of any substantial right that would be affected without immediate review.
Judge TYSON dissenting.
Appeal by defendant Lynwood Lucas from judgment entered 2 June
2003 by Judge Howard E. Manning, Jr. in Wake County Superior Court.
Heard in the Court of Appeals 25 August 2004.
Hunter, Higgins, Miles, Elam & Benjamin, P.L.L.C., by Robert
N. Hunter, Jr. and Christopher M. Craig, for plaintiff-
Ligon and Hinton, by George Ligon, Jr., for defendant-
Lynwood Lucas (defendant Lucas) appeals from partial summary
judgment awarding seventy-seven thousand dollars ($77,000) with
costs to Patricia Johnson, Doris Laryea, Lovie H. Jones, and
Geraldine Collier (collectively, plaintiffs), the judgment
recoverable from defendant Lucas and Joe Peacock (defendant
Peacock) (collectively, defendants), jointly and severally. The
court based its judgment in part upon prior findings of fact by
Judge J.B. Allen, Jr., from a July 2001 order in which defendant
Lucas was ordered to pay defendant Peacock seventy-seven thousanddollars ($77,000). We dismiss this appeal as interlocutory.
James Lucas, Sr., owned property (Property) located in Wake
County, North Carolina. His children are Patricia Johnson, Doris
Laryea, Geraldine Collier, defendant Lucas, and William Lucas, who
is not a party to this action. When James Lucas, Sr., died in
1967, the Property passed by will to his widow, plaintiff Lovie H.
Jones, for life. Upon her death, the Property passed equally to
his children as remaindermen and joint tenants. The Estate of
James Lucas, Sr. was closed on 2 December 1969 after the Clerk of
Court approved the Final Account, filed by defendant Lucas as
At the time of relevant events, plaintiff Lovie H. Jones lived
on the Property, where she remained until her death in April 1999.
Upon Lovie H. Jones' death, plaintiff Patricia Johnson assumed
possession of the Property.
In November 1995, defendant Lucas approached defendant Peacock
regarding the sale of timber growing on the Property. Defendant
Lucas represented and warranted to defendant Peacock that plaintiff
Lovie H. Jones owned the property and that he was authorized to
sell the timber. Defendant Lucas and plaintiff Lovie H. Jones
executed a Timber Deed granting defendant Peacock ownership in
the timber on the Property. Defendant Peacock testified he
purchased the timber believing that defendant Lucas and his mother,
Plaintiff Lovie H. Jones, were authorized to sell it. Defendant
Peacock harvested the timber and sold it to several lumber yards
for $107,040.74. Defendant Peacock subsequently paid defendantLucas $32,413.20, the purchase price set forth in the agreement.
On 5 May 1997, plaintiffs filed suit alleging that defendant
Lucas sold the timber without authorization from the other
remaindermen and did not share the proceeds. Plaintiffs alleged:
(1) Fraud and Misrepresentation, (2) Conversion, (3) Trespass, (4)
Civil Conspiracy, (5) Unlawful Cutting of Timber, and (6)
entitlement to Punitive Damages. The record contains returned
summonses showing service of process by the Sheriff of Wake County
on defendant Lucas and defendant Peacock's agent personally.
Defendant Lucas did not answer the complaint.
Defendant Peacock filed an answer and crossclaim against
defendant Lucas alleging: (1) defendant Lucas represented himself
as agent for the owners of the timber and defendant Peacock relied
in good faith on those representations, (2) defendant Lucas
covenanted and warranted to defendant Peacock that he was
authorized to act on the behalf of the owners of the timber, and
(3) defendant Peacock should be indemnified by defendant Lucas if
damages are awarded. Defendants Peacock and Lucas stipulated in
the record that service of process of the crossclaim was not
obtained on defendant Lucas.
On 27 June 1997, plaintiffs obtained an Entry of Default from
the Wake County Assistant Clerk of Superior Court against defendant
Lucas for failure to appear, plead, or otherwise defend.
Subsequently, following a hearing on 2 July 2001 in Wake County
Superior Court, Defendant Peacock obtained judgment against
defendant Lucas for seventy-seven thousand dollars ($77,000).
Defendant Lucas was not notified, and was neither present at thehearing nor represented by counsel.
On 13 March 2002, the court dismissed plaintiffs' complaint
with prejudice for lack of activity after the hearing on 2 July
2001, and ordered plaintiffs to pay court costs. Defendant Lucas
was not present. On 6 February 2003, plaintiffs filed a Motion for
Relief from Judgment under Rule 60(b) of the N.C. Rules of Civil
Procedure. Judge Narley Cashwell heard the motion on 6 April 2003,
and ordered the dismissal set aside and the case reinstated. Both
defendants took exception to the ruling.
On 10 March 2003 defendant Lucas filed a Motion for Relief
from Judge Allen's 2 July 2001 order that required him to pay
defendant Peacock Seventy-Seven Thousand Dollars ($77,000).
On 5 May 2003, Defendant Lucas filed a Motion to Set Aside the
Default entered against him on 27 June 1997, and also filed a
Motion to Dismiss defendant Peacock's Crossclaim. These motions
Plaintiffs filed a Motion for Partial Summary Judgment against
defendant Peacock on 10 April 2003 based on Claim #5 of their
complaint entitled Unlawful Cutting of Timber and a hearing was
held on 9 June 2003. The court entered Partial Summary Judgment
for plaintiffs against both defendants for the Unlawful Cutting of
Timber. The ruling was based solely upon the findings of fact in
the 12 July 2001 judgment against defendant Lucas. Defendant Lucas
The issues on appeal are whether: (1) this appeal by defendant
Lucas is interlocutory; (2) the superior court erred in grantingsummary judgment if William Lucas was a necessary party; (3) the
prior judgment was void; and (4) there were issues of fact as to
damages. However, in light of our conclusion that this appeal
should be dismissed as interlocutory, we do not reach any of the
III. Interlocutory Appeal
We initially consider whether this appeal from a partial
summary judgment is properly before this Court. Neither party
raised the issue of whether the appeal is interlocutory or properly
before the Court, and the appellant has asserted that the order
appealed from is a final judgment. Given that the record shows the
order to be interlocutory, as discussed below, we address this
issue on our own motion.
It appears from the record that the trial court granted
defendant's motion for partial summary judgment, leaving several of
the plaintiff's claims still pending. A final judgment is one
that determines the entire controversy between the parties, leaving
nothing to be decided in the trial court. Ratchford v. C.C.
Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002).
As such, the order granting partial summary judgment is
interlocutory. Ordinarily, there is no right of immediate appeal
from an interlocutory order. Travco Hotels, Inc. v. Piedmont
Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992).
The record indicates that the trial court did not certify this case
for immediate appeal pursuant to Rule 54(b) of the Rules of Civil
It is well established that the appellant bears the burden ofshowing to this Court that the appeal is proper. First, when an
appeal is interlocutory, the appellant must include in its
statement of grounds for appellate review sufficient facts and
argument to support appellate review on the ground that the
challenged order affects a substantial right. N.C. R. App. P.,
Rule 28(b)(4). Here, defendant simply asserts in its statement of
grounds for appellate review that the order is a final judgment,
and, not recognizing the appeal as interlocutory, does not address
what substantial right might be lost if this appeal does not lie.
Thus, we could dismiss the appeal based solely on failure to comply
with this requirement of the Rules.
In addition, however, defendant has failed to carry the burden
of showing why the appeal affects a substantial right. It is the
appellant's burden to present appropriate grounds for this Court's
acceptance of an interlocutory appeal, . . . and not the duty of
this Court to construct arguments for or find support for
appellant's right to appeal[.] Thompson v. Norfolk & Southern
Ry., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000)(internal
citations and quotation marks omitted). Where the appellant fails
to carry the burden of making such a showing to the court, the
appeal will be dismissed. Jeffreys v. Raleigh Oaks Joint Venture,
115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). The
appellant's brief here contains no statement of the grounds for
appellate review of the interlocutory order, and no discussion of
any substantial right that will be affected if we do not review
this order at this time. Therefore, both because of defendant's
failure to comply with Rule 24(b)(4), and for defendant's failureto carry its burden of proof, we dismiss this appeal as
interlocutory. In light of our conclusion that we should dismiss
this appeal, we do not reach the merits of the issues.
Judge BRYANT concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
The majority's opinion dismisses defendant Lucas's appeal for
failing to: (1) state in his brief the grounds for appellate
review of an interlocutory appeal; and (2) discuss the substantial
rights that will be affected if this appeal is not reviewed at this
time. Neither party raised the issue of the interlocutory nature
of this appeal in their respective briefs. The majority's opinion
reached that issue ex mero motu. In my view, defendant Lucas
sufficiently argues the applicable substantial rights that would be
adversely affected without this Court's review. I vote to reach
the merits of the case, vacate the trial court's judgment, and
remand the matter for further proceedings. I respectfully dissent.
I. Interlocutory Appeals
Interlocutory appeals are those made during the pendency of
an action which do not dispose of the case, but instead leave it
for further action by the trial court to settle and determine the
entire controversy. Sharpe v. Worland, 351 N.C. 159, 161, 522
S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71,
73, 511 S.E.2d 2, 4 (1999)); accord Veazey v. City of Durham, 231N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied by, 232 N.C. 744,
59 S.E.2d 429 (1950).
A. Rules of Appellate Procedure
Rule 28(b)(4) of the North Carolina Rules of Appellate
Procedure requires the appellant's brief to include a statement of
the grounds for appellate review. N.C.R. App. P. 28(b)(4) (2004);
see Chicora Country Club, Inc., et al. v. Town of Erwin, 128 N.C.
App. 101, 105, 493 S.E.2d 797, 800 (1997). If the appeal is
interlocutory, the statement must contain sufficient facts and
argument to support appellate review on the grounds that the
challenged judgment either affects a substantial right, or was
certified by the trial court for immediate appellate review.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379-80,
444 S.E.2d 252, 254 (1994).
Defendant Lucas does not specifically address appellate review
of an interlocutory appeal in his statement of the grounds for
appellate review. He argues the trial court violated his
constitutional due process and statutory rights when it entered
summary judgment against him based solely on the findings of fact
contained in a judgment in a prior case in which he never received
service of process.
B. Appellate Review of Interlocutory Judgments
Interlocutory judgments may only be appealed in the following
two situations: (1) certification by the trial court for immediate
review under N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); or (2) a
substantial right of the appellant is affected.
Tinch v. Video
Industrial Services., 347 N.C. 380, 381, 493 S.E.2d 426, 427 (1997) (citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434
(1980)); N.C. Gen. Stat. §
1-277A and 7A-27(d) (2003). Here, the
trial court did not certify its judgment from which defendant Lucas
appeals under Rule 54(b).
1. Substantial Right
In determining whether a substantial right is affected a
two-part test has developed -- the right itself must be substantial
and the deprivation of that substantial right must potentially work
injury to plaintiff if not corrected before appeal from final
judgment. Goldston v. American Motors Corp., 326 N.C. 723, 726,
392 S.E.2d 735, 736 (1990); N.C. Gen. Stat. § 1-277A; N.C. Gen.
Stat. § 7A-27(d).
Our Supreme Court adopted the dictionary definition of
substantial right in Oestreicher v. American Nat'l Stores, Inc.:
'a legal right affecting or involving a matter of substance as
distinguished from matters of form: a right materially affecting
those interests which a [person] is entitled to have preserved and
protected by law: a material right.' 290 N.C. 118, 130, 225
S.E.2d 797, 805 (1976) (quoting WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY at 2280 (1971)).
a. Service of Process
The Constitutional right of '[d]ue process of law' requires
that a defendant shall be properly notified of the proceeding
against him, and have an opportunity to be present and to be
heard. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 10, 149
S.E.2d 570, 577 (1966). The parties stipulate that defendant
Peacock failed to serve defendant Lucas with the crossclaim. It isalso undisputed that the findings of fact from the 12 July 2001
judgment that ruled on defendant Peacock's crossclaim were the
basis of the 9 June 2003 judgment from which defendant Lucas
Defendant Peacock failed to satisfy the requirements of Rules
4 and 5 of the N.C. Rules of Civil Procedure governing proper
service of process. N.C. Gen. Stat. § 1A-1, Rule 4 (2003); N.C.
Gen. Stat. § 1A-1, Rule 5 (2003); see also County of Wayne ex. rel.
Williams v. Whitley, 72 N.C. App. 155, 158, 323 S.E.2d 458, 461
(1984) (an action may be continued against that defendant by
either: (1) the plaintiff securing an endorsement upon the
original summons for an extension of time to complete service of
process; or (2) the plaintiff may sue out an alias or pluries
summons within 90 days after the issuance of the previous summons
or prior endorsement).
If a party fails to extend time for service, the suit is
discontinued, and treated as if it had never been filed. Johnson
v. City of Raleigh, 98 N.C. App. 147, 148-49, 389 S.E.2d 849, 851,
disc. rev. denied, 327 N.C. 140, 394 S.E.2d 176 (1990) (citing Hall
v. Lassiter, 44 N.C. App. 23, 26-27, 260 S.E.2d 155, 158 (1979)).
Without service of process, the court has no jurisdiction.
Columbus County v. Thompson, 249 N.C. 607, 610, 107 S.E.2d 302, 305
(1959) (citing Collins v. Highway Com., 237 N.C. 277, 74 S.E.2d 709
(1953); Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958)).
A subsequent judgment entered against the unserved party after the
action is discontinued for want of valid service of process is
void. Bowman v. Ward, 152 N.C. 602, 602-03, 68 S.E. 2 (1910)(citations omitted).
A void judgment is not a judgment and may always be treated
as a nullity . . . it has no force whatever. Clark v. Carolina
Homes, Inc., 189 N.C. 703, 708, 128 S.E. 20, 23 (1925) (citations
omitted). No matter how much time has passed, a void judgment will
never become valid. Columbus County, 249 N.C. at 610, 107 S.E.2d
at 305 (citations omitted).
The judgment entitling defendant Peacock to recover damages
from defendant Lucas was discontinued for want of service of
process and is void as a matter of law. Locklear v. Scotland
Memorial Hosp., 119 N.C. App. 245, 247-48, 457 S.E.2d 764, 766
(1995); see also Bowman, 152 N.C. at 602-03, 68 S.E. at 2; N.C.
Gen. Stat. § 1A-1, Rule 4(e). The 9 June 2003 judgment defendant
Lucas appeals from was based solely on findings of fact from
defendant Peacock's discontinued action and void judgment.
Defendant Peacock's failure to provide defendant Lucas any notice
of the crossclaim violated his due process rights under Section I
of the Fourteenth Amendment to the United States Constitution and
Article I, Section 19 of the North Carolina Constitution.
Failure to review the judgment appealed from would deprive
defendant Lucas an opportunity to protect his constitutional and
substantial right to due process of law and result in substantial
financial and legal injury to him. Defendant Lucas has shown that
both a constitutional and substantial right exist, which will be
lost if not corrected before appeal from final judgment. See
Goldston, 326 N.C. at 726, 392 S.E.2d at 736.
b. Monetary Judgment
Alternatively, defendant Lucas also argues the entry of a
monetary judgment, the result of the appealed judgment, further
affects his substantial rights. This Court held in Equitable
Leasing Corp. v. Myers that a trial court's entry of summary
judgment for a monetary sum against [a] defendant . . . affects a
'substantial right' of [the] defendant. 46 N.C. App. 162, 172,
265 S.E.2d 240, 247 (1980) (citation omitted). The 9 June 2003
judgment decreed plaintiffs are entitled to recover judgment
against defendants, jointly and severally, in the amount of
$77,000.00 for the unlawful cutting of timber. Stipulated facts
show that defendant Lucas and his mother, Lovie H. Jones, received
only $32,413.20 in proceeds from the sale of the timber. Both the
award and the amount of the monetary sum against defendant Lucas
affect a substantial right and are immediately appealable.
Further, the trial court did not stay its judgment pending
resolution of the remaining claims against defendant Lucas and
failed to rule on pending dispositive motions. This subjects
defendant Lucas to immediate execution of the judgment.
Defendant Lucas sufficiently argued two substantial rights
that will be adversely affected without this Court's immediate
review of the case. The merits of the issues presented by this
appeal are ripe for resolution.
II. Necessary Parties
Defendant Lucas contends the judgment is void for failure to
join a necessary party under Rule 19 of the N.C. Rules of Civil
Procedure. N.C. Gen. Stat. § 1A-1, Rule 19 (2003). He argues
William Lucas, his brother and the fifth remainderman, is necessaryto protect his rights and interests in the case. I disagree.
A necessary party is one who has or claims a material interest
in the subject matter of the controversy and whose interests will
be directly affected by the outcome of the case. N.C. Monroe
Constr. Co. v. Guilford County Bd. of Educ., 278 N.C. 633, 638-39,
180 S.E.2d 818, 821 (1971) (citing Gaither Corp. v. Skinner, 238
N.C. 254, 256, 77 S.E.2d 659, 661 (1953)). Rights of the necessary
party must be ascertained and settled before the rights of the
parties to the suit can be determined. Wall v. Sneed, 13 N.C. App.
719, 724, 187 S.E.2d 454, 457 (1972) (quoting Equitable Life Assur.
Soc. of United States et al. v. Basnight, 234 N.C. 347, 67 S.E.2d
Plaintiffs argue William Lucas is a proper party, but that his
participation in the suit is not necessary or required to protect
either his or defendant Lucas's rights and interests. Proper
parties are those whose interests may be affected by the outcome of
the case, but whose presence is not necessary to go forward. N.C.
Monroe Constr. Co., 278 N.C. at 638-39, 180 S.E.2d at 821 (quoting
Gaither Corp., 238 N.C. at 256, 77 S.E.2d at 661).
William Lucas was an equal remainderman under his father's
will and became a joint tenant upon the death of the life tenant,
his mother, Lovie H. Jones. While his interest in the Property
will be affected by the outcome, that interest does not require his
entry into the case for determination of possible damages.
Our Supreme Court addressed a similar issue in Winborne v.
Elizabeth City Lumber Co., 130 N.C. 32, 40 S.E. 825 (1902). A
single co-tenant sought compensation for the harvesting of timberfrom property. Id. at 33, 40 S.E. at 825. The Court awarded him
a pro rata part of the damages, reserving the remaining shares for
the other co-tenants. Id. Winborne's logic applies to the case at
Should plaintiffs be awarded damages for some or all of their
claims against defendants, each remainderman will receive their pro
rata share, including defendant Lucas and William Lucas. Their
shares will be separated to protect their interest in the Property.
I would hold that William Lucas is a proper but not a necessary
party to this action. This assignment of error should be
III. Life Tenancy and Waste
Defendant Lucas's final assignment of error asserts the trial
court erred by granting partial summary judgment when genuine
issues of material fact exist regarding the amount of damages. I
The existence and amount of damages rest on two factors.
First, the 9 June 2003 partial summary judgment awarding damages
was based on findings of fact in the void 12 July 2001 judgment.
This included the $77,000.00 in damages. It is undisputed that the
12 July 2001 judgment is void for lack of service of process on
defendant Lucas. Thus, the amount of damages against defendant
Lucas, if any, was not properly determined.
Second, the foundation of all claims in plaintiffs' complaint
asserts that a life tenant may not sell timber from the property
without the authorization of all remaindermen and the sharing of
proceeds. Thomas v. Thomas, 166 N.C. 627, 631, 82 S.E. 1032, 1034(1914) (citing Dorsey v. Moore, 100 N.C. 41, 44, 6 S.E. 270, 271
(1888)). Plaintiffs argue such behavior constitutes waste and
impairs the substance of the inheritance. Dorsey, 100 N.C. at 44,
6 S.E. at 271. However, a long standing exception allows a life
tenant to harvest and sell sufficient timber to maintain the
property for the proper enjoyment of the land. Fleming v. Sexton,
172 N.C. 250, 257, 90 S.E. 247, 250-51 (1916) (citing Thomas, 166
N.C. at 631, 82 S.E. at 1034 (citations omitted)). This right
includes physically using the timber or the proceeds from its sale
to maintain or repair the life estate. Id.
Defendant Lucas contends this exception applies to him. In
his Motion to Set Aside Entry of Default filed on 5 May 2003, which
the trial court did not rule upon, he asserts the proceeds from the
sale of the timber were given to the life tenant, plaintiff Lovie
H. Jones, for the maintenance of the Property. He argues this
issue again on appeal to this Court. This defense to allegations
of waste also affects the determination of damages.
Both the failure to complete service of process of the
crossclaim by defendant Peacock and defendant Lucas's defense to
waste are questions of fact in calculating damages. Defendant
Lucas argues his mother received the full contract price of
$32,413.20, while he is liable under the void judgment for
$77,000.00 plus costs. The issue of damages is a question of fact.
Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 548,
356 S.E.2d 578, 586, reh'g denied by, 320 N.C. 639, 360 S.E.2d 92
(1987). Since a genuine issue of material fact exists, partial
summary judgment awarding damages was improper. Frank H. ConnerCo. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661, 677, 242 S.E.2d
785, 794 (1978); N.C. Gen. Stat. § 1A-1, Rule 56(d). A judgment
that rests upon a void judgment for its validity is itself void.
See Clark, supra. I would vacate the trial court's decision and
remand for further proceedings consistent with this opinion.
IV. Hearings for Defendant Lucas's Motions
Defendant Lucas filed three separate motions for relief during
the course of this action: (1) Motion for Relief of Judgment dated
10 March 2003; (2) Motion to Set Aside Entry of Default dated 5 May
2003; and (3) Motion to Dismiss Crossclaim dated 5 May 2003.
Although these dispositive motions were filed and pending, the
record does not disclose whether any of the three were ruled upon
prior to entry of the appealed judgment.
All three motions are dispositive of issues present in the
case. Upon remand, these motions should be heard.
Defendant Lucas sufficiently argued that his substantial
rights will be adversely affected without this Court's review of
the case. In accordance with my discussion of the merits, I would:
(1) vacate the trial court's entry of partial summary judgment
against defendant Lucas, as it was based solely on findings of fact
from a void judgment entered without jurisdiction over defendant
Lucas; and (2) remand this case for further proceedings. I
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