An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04_1078


Filed: 17 May 2005


    v .                         Rutherford County
                            No. 02 CVS 1138

    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.
    Judges TIMMONS-GOODSON and CALABRIA concur.
    Report per Rule 30(e).

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