Appeal by plaintiffs from amended order entered 29 July 2003
by Judge E. Penn Dameron, Jr. in Rutherford County Superior Court.
Heard in the Court of Appeals 24 March 2005.
David R. Payne, P.A., by David R. Payne and Peter U. Kanipe,
for plaintiffs-appellants.
Yelton, Farfour, McCartney, Lutz & Craig, P.A., by Leslie A.
Farfour, Jr., for defendants-appellees Patrick D. Nanney and
Lucille G. Nanney.
Stott, Hollowell, Palmer & Windham, L.L.P., by James C.
Windham, Jr., for defendant-appellee Washburn Real Estate,
Inc.
Dean & Gibson, L.L.P., by I. Timothy Zarsadias, for
defendants-appellees Sandi Wolfe and Sandi Padgett Real
Estate.
GEER, Judge.
This litigation arose out of a dispute involving a real estate
transaction. Plaintiffs Harold Jackson Stinson, III and Tammy
Renee Stinson appeal from an amended order granting summaryjudgment to defendants on plaintiffs' claim for unfair and
deceptive trade practices, but denying summary judgment as to
plaintiffs' fraud claim and as to cross-claims filed by defendants.
Because the summary judgment order is interlocutory and the record
contains neither a Rule 54(b) certification nor any indication that
a substantial right will be lost in the absence of an immediate
appeal, we dismiss plaintiffs' appeal.
Plaintiffs ("the Stinsons") purchased a home owned by
defendants Patrick and Lucille Nanney ("the Nanneys") in 1997.
Subsequent to the purchase, the Stinsons discovered a serious
flooding problem in the basement of the home. On 22 June 2000, the
Stinsons filed suit against the Nanneys and the Stinsons' realtor,
Washburn Real Estate, Inc., alleging breach of contract, breach of
warranty, unfair and deceptive trade practices, and fraudulent
misrepresentation. The Nanneys and Washburn Real Estate in turn
filed cross-claims against each other and against Sandi Padgett,
the Nanneys' realtor.
On 27 March 2002, after the trial court had denied the
Stinsons' motion to amend their complaint to add Padgett as a
defendant and their motion to continue the trial, the Stinsons
voluntarily dismissed their claims without prejudice. The Stinsons
re-filed their claims on 7 October 2002, asserting the same claims
as before, but adding Sandi Padgett Wolfe and Sandi Padgett Real
Estate as defendants. Defendants answered and asserted cross-
claims against each other. On 27 June 2003, defendants Sandi Padgett Wolfe and Sandi
Padgett Real Estate moved for summary judgment as to plaintiffs'
claims and the other defendants' cross-claims. The Nanneys filed
a separate summary judgment motion with respect to plaintiffs'
claims on 30 June 2003. Defendant Washburn Real Estate did not
file a motion for summary judgment. On 29 July 2003, the trial
court entered an order granting summary judgment in favor of all
defendants as to plaintiffs' unfair and deceptive trade practices
claim based on violation of the applicable statute of limitations.
The same order denied summary judgment as to plaintiffs' fraudulent
misrepresentation claim and as to the cross-claims against Sandi
Padgett Wolfe and Sandi Padgett Real Estate. The order did not
address plaintiffs' breach of contract and breach of warranty
claims. Plaintiffs have appealed from this order.
An order is interlocutory if it does not dispose fully of a
case, but rather requires further action by the trial court in
order to finally determine the rights of all the parties involved
in the controversy.
Veazey v. City of Durham, 231 N.C. 357, 362,
57 S.E.2d 377, 381 (1950). Here, because plaintiffs' claims for
breach of contract, breach of warranty, and fraudulent
misrepresentation _ as well as defendants' cross-claims _ are still
pending, the summary judgment order appealed by plaintiffs is an
interlocutory order.
An interlocutory order is immediately appealable only if (1)
the order is final as to some claims or parties and the trial courthas certified pursuant to Rule 54(b) of the Rules of Civil
Procedure that there is no just reason to delay the appeal, or (2)
the order deprives the appellant of a substantial right that would
be lost in the absence of an immediate appeal.
Currin & Currin
Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d
321, 323 (2003). Since the trial court in this case did not
include a Rule 54(b) certification in the summary judgment order,
plaintiffs are entitled to pursue this appeal only if that order
deprived them of a substantial right that would be lost if we
dismissed their interlocutory appeal.
An appellant bears the burden of establishing the existence of
a substantial right.
Embler v. Embler, 143 N.C. App. 162, 166, 545
S.E.2d 259, 262 (2001). Under the North Carolina Rules of
Appellate Procedure, "[w]hen an appeal is interlocutory, the
statement [of grounds for appellate review] 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 support of their argument that the order below affects a
substantial right, plaintiffs' Statement of Grounds for Appellate
Review asserts only that in the absence of an immediate appeal,
there is a possibility of inconsistent verdicts. Our Supreme Court
has observed that "'the right to avoid the possibility of two
trials
on the same issues can be . . . a substantial right.'"
Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596
(1982) (quoting H. Bryan Ives, III and Penni Leigh Pearson,
Surveyof Developments in North Carolina Law, 1978: Civil Procedure, 57
N.C. L. Rev. 891, 908 (1979)).
The Court further explained in
Green that "[o]rdinarily the possibility of undergoing a second
trial affects a substantial right only when the same issues are
present in both trials, creating the possibility that a party will
be prejudiced by different juries in separate trials rendering
inconsistent verdicts on the same factual issue."
Id.
No such risk appears here. Our Supreme Court has held that "a
plaintiff who proves fraud thereby establishes that unfair or
deceptive acts have occurred."
Bhatti v. Buckland, 328 N.C. 240,
243, 400 S.E.2d 440, 442 (1991).
See also Hardy v. Toler, 288 N.C.
303, 309, 218 S.E.2d 342, 346 (1975) ("Proof of fraud would
necessarily constitute a violation of the prohibition against
unfair and deceptive acts."). Once a plaintiff has, by proving
fraud, established the existence of unfair and deceptive trade
practices, "the burden shifts to the defendant to prove that he is
exempt from the provisions of N.C.G.S. § 75_1.1."
Bhatti, 328 N.C.
at 243_44, 400 S.E.2d at 442.
Accordingly, in this case, if plaintiffs prevail at trial on
the issue of fraud, then plaintiffs will necessarily have
established an unfair and deceptive trade practice. Should this
Court, on appeal following the final judgment, reverse the trial
court's summary judgment order, plaintiffs will not be required to
relitigate the fraud issue. The sole question on remand would, in
that event, be whether defendants could meet their burden of
showing that they are "exempt from the provisions of N.C.G.S. §75_1.1."
Id. at 243_44, 400 S.E.2d at 442. There is thus no risk
of "different juries in separate trials rendering inconsistent
verdicts on the same factual issue."
Green, 305 N.C. at 608, 290
S.E.2d at 596.
Since plaintiffs have not identified any other substantial
right, we dismiss plaintiffs' appeal as interlocutory.
Dismissed.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***