Smith v Schelero, (04-1103) 04/05/2005

Appeal by plaintiff from order entered 7 June 2004 by Judge James Ammons in Brunswick County District Court. Heard in the Court of Appeals 4 April 2005.

H. Kenneth Stephens, II, for plaintiff-appellant.

The Del Re' Law Firm, by Benedict J. Del Re' Jr., for defendant-appellees, Lawrence S. Schelero and Peggy J. Schelero.

ELMORE, Judge.

    Leonard G. Smith (plaintiff) appeals from an order granting summary judgment in favor of defendants Lawrence S. Schelero and Peggy J. Schelero (the Scheleros). On 19 August 2003, plaintiff filed a complaint naming as defendants the Scheleros, Fuss & Fairley, P.C., Trustee, Seacoast Realty, Inc. d/b/a Coldwell Banker Seacoast Realty and Andy Hajek. The complaint alleged thatplaintiff entered into an “Exclusive Right to Represent Buyer” with Andy Hajek, a salesperson with Seacoast Realty, to buy property owned by the Scheleros. The complaint alleged causes of action for: (1) fraud against the Scheleros; (2) mutual mistake; (3) negligence against defendant Hajek; (4) respondeat superior against Seacoast Realty, Inc.; and (5) breach of contract against Seacoast Realty.
    The Scheleros answered and filed motions to dismiss and for sanctions. The trial court denied both motions and the Scheleros then filed a motion for summary judgment. After hearing the Scheleros' motion for summary judgment, the court entered an order granting the motion for summary judgment and dismissing the complaint as to the Scheleros. Plaintiff appeals.
    Although neither party addressed the interlocutory nature of plaintiff's appeal, we raise this issue of appealability on our own motion. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). “An order is interlocutory if it does not determine the entire controversy between all of the parties.” Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). In the order at issue here, the superior court granted the Scheleros' motion for summary judgment, leaving the claims against the remaining defendants to go forward. Therefore, the order is interlocutory.
    Generally, there is no right of immediate appeal from an interlocutory order. Myers v. Mutton, 155 N.C. App. 213, 574 S.E.2d 73, disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (2002). However, an interlocutory order is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) 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 unless immediately reviewed. Id.
    In the present case, the trial court did not certify the order under Rule 54(b), nor do we conclude that a substantial right will be lost if the order is not immediately appealed. A “[s]ubstantial right”[] [is] “a legal right affecting or involving a matter of substance as distinguished from matters of form [or] a right materially affecting those interests which a [person] is entitled to have preserved and protected by law[.]” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quoting Oestreicher v. Stores, 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)). Furthermore, “simply having all claims determined in one proceeding is not a substantial right.” J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 7, 362 S.E.2d 812, 816 (1987).
    We hold that no substantial right of plaintiff's would be jeopardized by postponing appeal of the summary judgment order until after trial. Accordingly, plaintiff's appeal must be dismissed.
    Dismissed.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***