Atkins v. Beasley

279 S.E.2d 866, 53 N.C. App. 33, 1981 N.C. App. LEXIS 2534

• Court: Court of Appeals of North Carolina
• Decided: July 7, 1981
• Docket: 8021SC700
• Status: Published

Opinion

MARTIN (Robert M.), Judge.

The threshold question which we must consider, although not argued by the parties in their briefs, is whether an appeal lies from Judge McConnell’s entry of partial summary judgment in plaintiffs’ favor. If this is a fragmentary, and therefore premature, appeal, we must dismiss the appeal ex mero motu. Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980).

A party has a right to appeal a judgment of a trial court under N.C. Gen. Stat. §§ 1-277 and 7A-27 if the judgment is (1) a final order, or (2) an interlocutory order affecting some substantial right claimed by the appellant which will work an injury to him if not corrected before an appeal from a final judgment. Bailey v. Gooding, supra; Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979); Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377 (1950). “A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” Bailey v. Gooding, supra at 209, 270 S.E. 2d at 433, quoting Veazey v. Durham, supra at 361-2, 57 S.E. 2d at 381. Clearly the judgment in question is not a final judgment, as plaintiffs’ claims against defendant Johnson and defendants’ various crossclaims remain to be tried.

The question remains whether the partial summary judgment in question affects some substantial right claimed by defendants which will work an injury to them if not corrected before an appeal from a final judgment. Bailey v. Gooding, supra; Industries, Inc. v. Insurance Co., supra; Veazey v. Durham, supra. Our research has failed to disclose any opinion rendered by the appellate courts of this State deciding the question of whether the grant of a partial summary judgment ordering defendants to specifically perform a contract is immediately appealable. We are aware of three cases, however, which we feel are analogous to the present case. In Investments v. Housing, Inc., 292 N.C. 93, 232 S.E. 2d 667 (1977), the Supreme Court, reversing this Court, held that the grant of a partial summary judgment for a monetary sum against the defendant affected a substantial right of the defendant and would work an injury to it if not corrected before an appeal from a final judgment; therefore the judgment, was ap-pealable under the “substantial right” exception provided in N.C. Gen. Stat. § 1A-1, Rule 54(b) through N.C. Gen. Stat. §§ 1.277 and 7A-27(d). In Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240, appeal dismissed, 301 N.C. 92 (1980) this Court also held, citing Investments, supra, that the trial court’s entry of a partial summary judgment for a monetary sum against the defendant affected a substantial right of the defendant and was therefore immediately appealable under N.C. Gen. Stat. §§ 1-277 and 7A-27. In the case of English v. Realty Corp., 41 N.C. App. 1, 254 S.E. 2d 223, rev. denied, 297 N.C. 609, 257 S.E. 2d 217 (1979), this Court held that the grant of a partial summary judgment for plaintiffs on the issue of liability which included a mandatory injunction ordering defendant to remove a roadway affected a substantial right of the defendant and was immediately appealable. Based on these cases, we conclude that the grant of the partial summary judgment in the present case, ordering defendants Beasley, Alvin R. Reid and Slate to specifically perform the agreement affects a substantial right of these defendants and, if it is improper, will work an injury to them if not corrected before an appeal from a final judgment. We therefore hold that pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27, these defendants had the right to appeal immediately the grant of said judgment and, as they have complied with the requirements of the Rules of Appellate Procedure in all respects, their appeal is properly before this Court. We note, however, that the partial summary judgment does not order defendant Janie D. Reid to do anything and, therefore, she is not an aggrieved party and has no right to appeal the judgment in question. Coburn v. Timber Corporation, 260 N.C. 173, 132 S.E. 2d 340 (1963).

We next turn to the question of whether the trial court erred in granting plaintiffs’ motion for partial summary judgment.

N.C. Gen. Stat. § 1A-1, Rule 56 is not limited in its application to any particular type or types of action. McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972). Summary judgment may be granted for any type of claim, Conner Co. v. Spanish Inns, 294 N.C. 661, 242 S.E. 2d 785 (1978), including a claim for specific performance of a contract. See Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). When a party moves for summary judgment,- “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c). This procedure is available to both plaintiff and defendant. McNair v. Boyette, supra.

The first question which confronts us in deciding whether the trial court was correct in granting plaintiffs’ motion for summary judgment is whether plaintiffs showed there was no genuine issue as to any material fact. The burden of establishing the lack of any triable issue of fact is on the party moving for summary judgment. North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E. 2d 375 (1976). When the party moving for summary judgment supports his motion as provided in Rule 56, the party opposing the motion

may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

N.C. Gen. Stat. § 1A-1, Rule 56(e); Kidd v. Early, supra.

We note that the following facts are not in issue: (1) On or about 16 October 1969 defendants William F. Beasley, Alvin R. and Janie D. Reid and B. A. Slate executed an agreement which required defendants Reid and defendant Slate to bear the expense of installing drain tile on or through Lot 12B, owned by defendants Beasley, if anyone owning Lots 9, 10, and 12B of Holiday Heights Subdivision “should ever complain or demand that tile be installed on or through Lot 12B ... so that they can get proper drainage, if needed. . . .” The agreement also provided that “there shall be no expense to the said William F. Beasley” and that defendant William F. Beasley agreed to allow defendants “Alvin R. Reid and B. A. Slate [to] install the tile, if ever needed, providing that they sow his yard and repair in good condition;” (2) plaintiffs are the present owners of Lots 9 and 10 of Holiday Heights Subdivision; and (3) plaintiffs had complained and demanded that tile be installed on or through Lots 12B so that they can get proper drainage for their property.

There is a genuine issue of disputed fact, however, as to whether there is a need for the drainage tile. Defendant Slate’s verified answer denied the alleged need for drainage tile. The response of defendants Reid to the motion for summary judgment denied the need alleged, and the response of defendant Slate also raised the question of whether there is a need for the installation of the drainage tile. The plaintiffs’ complaint alleged that an agent of the State had repeatedly stated that plaintiffs’ drainage was adequate but that the catch basin, located on the State right-of-way was the cause of plaintiffs’ problems. This is clearly a material question of fact as the agreement provides that the drainage “tile shall be installed on or through Lot 12B of same development so that they can get proper drainage, if needed. . . .” (Emphasis added.) For these reasons, summary judgment was not proper in this case and the partial summary judgment must be reversed.

Defendant Janie D. Reid also assigns as error the trial court’s denial of her motion for summary judgment. She moved for summary judgment in her favor on the grounds that the agreement was unenforceable as to her due to lack of consideration. Generally, denial of a motion for summary judgment is not immediately appealable. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978). We fail to see how denial of Mrs. Reid’s motion affects a substantial right. We therefore dismiss her appeal from that order because it is a fragmentary, and therefore premature, appeal. N.C. Gen. Stat. §§ 1-277 and 7A-27. See Hill v. Smith, 38 N.C. App. 625, 248 S.E. 2d 455 (1978).

The result of our decision is as follows: (1) defendant Janie D. Reid’s appeal of the 27 March 1980 partial summary judgment is dismissed because she was not an aggrieved party to that judgment; (2) the order granting plaintiffs’ motion for partial sum mary judgment is reversed because a genuine issue of material fact exists as to whether there is a need for the drainage tile; and (3) defendant Janie D. Reid’s appeal of the 15 October 1979 order denying her motion for summary judgment is dismissed because it is a premature appeal.

Appeal dismissed in part and reversed in part.

Chief Judge MORRIS and Judge WHICHARD concur.