Beam v. Morrow

Court of Appeals of North Carolina

Beam v. Morrow

336 S.E.2d 106, 77 N.C. App. 800, 1985 N.C. App. LEXIS 4384

CourtCourt of Appeals of North Carolina

DecidedNovember 19, 1985

Docket8525SC445

StatusPublished

Cited by3 cases

This text of 336 S.E.2d 106 (Beam v. Morrow) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beam v. Morrow, 336 S.E.2d 106, 77 N.C. App. 800, 1985 N.C. App. LEXIS 4384 (N.C. Ct. App. 1985).

Pincite

Opinion

WELLS, Judge.

The threshold question is whether the order allowing plaintiffs’ motion for partial summary judgment is appealable. “A judgment is either interlocutory or the final determination of the rights of the parties.” N.C. Gen. Stat. § 1A-1, Rule 54(a) of the Rules of Civil Procedure. A final judgment disposes of the cause as to all the parties, leaving nothing to be determined between them in trial court. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). When more than one claim for relief is presented the court may enter a final judgment as to fewer than all the claims or parties “only if there is no just reason for delay and it is so determined in the judgment.” G.S. 1A-1, Rule 54(b). See Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240, appeal dismissed, 301 N.C. 92, --- S.E. 2d --- (1980). Rule 54(b) also *803 permits appeal when fewer than all claims are determined if “expressly provided by these rules or other statutes.” The “other statutes” are N.C. Gen. Stat. § 1-277 (1983) and N.C. Gen. Stat. § 7A-27(d) (1981), which allow an immediate appeal from a judicial determination which deprives appellant of a substantial right which he would lose if the ruling is not reviewed on appeal before final judgment. Waters v. Personnel Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978); Leasing Corp., supra.

In this case the partial summary judgment did not dispose of all the claims against all of the parties, but only the claim against the Commissioners and Lacey seeking to declare the contract and deed void. While the forecast of evidence before the trial court would appear to support the trial court’s judgment, there remains for later determination at trial the questions of the accounting of the expenditures made by the Commissioners in connection with the purchase of the property and the application for a landfill permit and the recovery of the $200,000 paid by the Commissioners to Harris. The trial court did not make the determination that there is no just reason for delay. Since this order is interlocutory it is appealable only if a substantial right would be lost if the order is not reviewed before final judgment. We find that defendants Commissioners and Lacey will not lose any substantial right by waiting to appeal this issue after the trial on the issues of the accounting of the expenditures and the recovery of the $200,000. As this appeal is premature, it must be and is

Dismissed.

Chief Judge HEDRICK and Judge EAGLES concur.

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WELLS, Judge.

The threshold question is whether the order allowing plaintiffs’ motion for partial summary judgment is appealable. “A judgment is either interlocutory or the final determination of the rights of the parties.” N.C. Gen. Stat. § 1A-1, Rule 54(a) of the Rules of Civil Procedure. A final judgment disposes of the cause as to all the parties, leaving nothing to be determined between them in trial court. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). When more than one claim for relief is presented the court may enter a final judgment as to fewer than all the claims or parties “only if there is no just reason for delay and it is so determined in the judgment.” G.S. 1A-1, Rule 54(b). See Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240, appeal dismissed, 301 N.C. 92, --- S.E. 2d --- (1980). Rule 54(b) also *803 permits appeal when fewer than all claims are determined if “expressly provided by these rules or other statutes.” The “other statutes” are N.C. Gen. Stat. § 1-277 (1983) and N.C. Gen. Stat. § 7A-27(d) (1981), which allow an immediate appeal from a judicial determination which deprives appellant of a substantial right which he would lose if the ruling is not reviewed on appeal before final judgment. Waters v. Personnel Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978); Leasing Corp., supra.

In this case the partial summary judgment did not dispose of all the claims against all of the parties, but only the claim against the Commissioners and Lacey seeking to declare the contract and deed void. While the forecast of evidence before the trial court would appear to support the trial court’s judgment, there remains for later determination at trial the questions of the accounting of the expenditures made by the Commissioners in connection with the purchase of the property and the application for a landfill permit and the recovery of the $200,000 paid by the Commissioners to Harris. The trial court did not make the determination that there is no just reason for delay. Since this order is interlocutory it is appealable only if a substantial right would be lost if the order is not reviewed before final judgment. We find that defendants Commissioners and Lacey will not lose any substantial right by waiting to appeal this issue after the trial on the issues of the accounting of the expenditures and the recovery of the $200,000. As this appeal is premature, it must be and is

Dismissed.

Chief Judge HEDRICK and Judge EAGLES concur.

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336 S.E.2d 106, 77 N.C. App. 800, 1985 N.C. App. LEXIS 4384, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beam-v-morrow-ncctapp-1985.

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