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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.
CHARLES DEXTER JOHNSON, Individually and in his capacity as a
shareholder of DEXTER SPORTS SUPPLEMENTS, INC. and POWERSTAR,
INC., Plaintiff, v. SAMUEL J. WORNOM, III; DEXTER SPORTS
SUPPLEMENTS, INC.; and POWERSTAR, INC. (as nominal corporate
Filed: 4 January 2005
1. Appeal and Error--appealability--interlocutory order--grant of partial summary
The trial court's grant of partial summary judgment in favor of defendant individual is
immediately appealable even though it is an appeal from an interlocutory order, because: (1) a
substantial right is affected and the judgment is immediately appealable when a ruling on a
motion for summary judgment constitutes the final dismissal of a claim; and (2) plaintiff
individual's loan broker claim was dismissed with prejudice upon the trial court's grant of
summary judgment for defendant individual, and all other claims in the action have been
2. Brokers--loan broker_-failure to comply with statutory requirements--summary
A de novo review revealed that the trial court erred by granting partial summary
judgment in favor of defendant individual on plaintiff individual's claim that defendant acted as
a loan broker as defined by N.C.G.S. § 66-106 and that he failed to comply with the statutory
requirements governing loan brokers because viewed in the light most favorable plaintiff,
defendant failed to show that there is no genuine dispute that defendant did not act as a loan
broker given that defendant promised to, and did, procure a loan from a third party in return for
Appeal by Plaintiff from order entered 6 October 2003 by Judge
James M. Webb in Superior Court, Moore County. Heard in the Court
of Appeals 16 November 2004.
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, for
Staton, Perkinson, Doster, Post & Silverman, by Jonathan
Silverman, for Defendant-Appellee.
Plaintiff Charles Dexter Johnson asserts that the trial court
erred in granting Defendant Samuel J. Wornom, III's motion for
partial summary judgment. Johnson contends that Wornom was a loan
broker as defined by North Carolina General Statute section 66-106
and failed to fulfill his loan broker obligations pursuant to North
Carolina General Statute sections 66-107 et seq. After careful
review, we reverse the trial court's order and remand for further
A brief procedural and factual history of the instant appeal
is as follows: Johnson is the founder of Dexter Sports
Supplements, Inc. and Powerstar, Inc., which sell sports and
nutritional dietary supplements. Wornom is, inter alia, the former
co-owner of convenience and/or variety stores, a land developer,
and a member of the board of directors of Capital Bank. Before
their business dealings, Johnson and Wornom knew one another from
their health club, Sanford Nautilus.
The records tends to show that in July 1998, Johnson sought a
loan line for Dexter Sports Supplements, Inc. and Powerstar, Inc.
from Capital Bank. But Capital Bank would not approve his loan,
suggesting instead that he consult with Wornom regarding financing.
Johnson soon thereafter approached Wornom at the Sanford Nautilus
and inquired into his interest in investing in Johnson'sbusinesses.
Wornom agreed to guarantee a Capital Bank loan of $82,000 for
Dexter Sports Supplements, Inc. and Powerstar, Inc. in exchange
for, inter alia, active involvement in managing the businesses and
an interest in the businesses and certain real estate. Ultimately,
Johnson defaulted on this loan, and Wornom, as guarantor, paid
Capital Bank over $84,000 to satisfy the debt. Nevertheless,
Wornom continued investing in Dexter Sports Supplements, Inc. and
Powerstar, Inc. through 2000, putting up approximately $250,000.
On 2 February 2001, Johnson filed an action alleging, inter
alia, that Wornom acted as a loan broker as defined by North
Carolina General Statute section 66-106 and that he failed to
comply with the statutory requirements governing loan brokers set
forth in North Carolina General Statute sections 66-107 et seq.
The parties moved for partial summary judgment. On 6 October 2003,
the trial court denied Johnson's motion for summary judgment and
granted Wornom's motion, finding that Wornom had not acted as a
loan broker and dismissing Johnson's loan broker claim with
prejudice. Johnson appealed the order, while both parties
voluntarily dismissed the other claims filed in the action.
 The grant of summary judgment as to fewer than all
parties or claims is generally not appealable. Equitable Leasing
Corp. v. Myers
, 46 N.C. App. 162, 164, 168, 265 S.E.2d 240, 242,245 (1980) (quotation omitted). Where a ruling on a motion for
summary judgment constitutes the final dismissal of a claim,
however, a substantial right is affected, and the judgment is
immediately appealable. Tinch v. Video Indus. Servs.
, 347 N.C.
380, 381-82, 493 S.E.2d 426, 427-28 (1997). Here, because
Johnson's loan broker claim was dismissed with prejudice upon the
trial court's grant of summary judgment for Wornom, and because all
other claims in the action have been dismissed, the partial summary
judgment is appealable.
(See footnote 1)
We review the trial court's grant of summary judgment de
novo. White v. Consol. Planning, Inc.
, 166 N.C. App. 283, 296,
603 S.E.2d 147, 157 (2004) (citation omitted). In so doing, we
undertake a two-part analysis of whether: '(1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law.' Von Viczay v. Thoms
, 140 N.C. App.
737, 738, 538 S.E.2d 629, 630 (2000) (quoting Gaunt v. Pittaway
139 N.C. App. 778, 784, 534 S.E.2d 660, 664 (2000)). The movant has
the burden of establishing the absence of any genuine issue ofmaterial fact and his/her entitlement to judgment as a matter of
law. Garner v. Rentenbach Constructors, Inc.
, 350 N.C. 567, 572,
515 S.E.2d 438, 441 (1999). The evidence must be viewed in the
light most favorable to the non-moving party, and all inferences
must be drawn against the movant and in favor of the non-moving
 In this appeal, Johnson asserts that the trial court erred
in granting Wornom's motion for partial summary judgment. Johnson
contends Wornom acted as a loan broker as defined by North Carolina
General Statute section 66-106 and failed to comply with loan
broker obligations identified in North Carolina General Statute
sections 66-107 et seq
A 'loan broker' is any person, firm, or corporation who, in
return for any consideration from any person, promises to (i)
procure for such person, or assist such person in procuring, a loan
from any third party; or (ii) consider whether or not it will make
a loan to such person. N.C. Gen. Stat. §66-106 (2003). A loan
broker is required to provide a disclosure statement (N.C. Gen.
Stat. §66-107 (2003)), obtain a surety bond or establish a trust
account (N.C. Gen. Stat. §66-108 (2003)), and file various
with the Secretary of State (N.C. Gen. Stat. §66-109
Here, the record shows that Johnson approached Wornom about
investing in Dexter Sports Supplements, Inc. and Powerstar, Inc. Wornom agreed, and the parties entered into a contract, prepared by
Wornom's attorney, stating that the business[es] asked Wornom to
provide access to capital, which Wornom has agreed to do[.]
Wornom agreed to arrange a loan at Capital Bank or other
commercial bank, or he will personally loan the Business[es] the
sum of $82,000[.] In exchange, Wornom was to receive, inter alia
a one-half interest in certain real estate and stock warrants.
Ultimately, Wornom arranged and guaranteed a loan of $82,000 from
Capital Bank and received an interest in the businesses and real
estate, as well as a role in the businesses' management. Given
that Wornom promised to, and did, procure a loan from a third party
in return for consideration, Wornom has not shown, in the light
most favorable to Johnson, that there is no genuine dispute that he
did not act as a loan broker. See
N.C. Gen. Stat. §66-106
'loan broker' is
any person . . . who, in return for any
consideration from any person, promises to (i) procure for such
person, or assist such person in procuring, a loan from any third
party; or (ii) consider whether or not it will make a loan to such
The trial court therefore erred in granting Wornom's
motion for partial summary judgment.
Accordingly, we reverse the trial court's order granting
Wornom's motion for partial summary judgment.
(See footnote 2)
Reversed and remanded.
Judges HUDSON and ELMORE concur.
Footnote: 1 Johnson also appeals from the denial of his motion for
partial summary judgment. We do not address that issue because
the denial of a motion for summary judgment is interlocutory and
therefore generally not appealable. Carriker v. Carriker, 350
N.C. 71, 73 511 S.E.2d 2, 4 (1999); Iverson v. TM One, Inc., 92
N.C. App. 161, 165-66, 374 S.E.2d 160, 163 (1988).
Wornom has urged this Court to refrain from reviewing this
case, contending that Johnson abandoned his two assignments of
error by failing to reference them in his appellate briefing.
First, we note that Johnson was allowed to amend his brief byadding references to his assignments of error. Moreover, the
only case Wornom cites in support of his argument squarely
undercuts the argument. In Anthony v. City of Shelby, we did
indeed state that in an appellate brief, immediately following
each question shall be a reference to the assignments of error
pertinent to the question, identified by their numbers and by the
pages at which they appear in the printed record on appeal. . . .
[P]etitioners' failure to observe the requirements of the Rules
subjects their appeal to dismissal. Anthony v. City of Shelby,
152 N.C. App. 144, 146, 567 S.E.2d 222, 224-25 (2002) (quotation
and citations omitted). While recognizing the appellants'
failure to reference his assignments of error, though, in Anthony
we expressly nevertheless considered the appellants' arguments.
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