High Point Bank v. Hoffman Builders, Inc.

711 S.E.2d 774, 212 N.C. App. 419
CourtCourt of Appeals of North Carolina
DecidedJune 7, 2011
DocketCOA10-1181
StatusPublished
Cited by1 cases

This text of 711 S.E.2d 774 (High Point Bank v. Hoffman Builders, Inc.) 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
High Point Bank v. Hoffman Builders, Inc., 711 S.E.2d 774, 212 N.C. App. 419 (N.C. Ct. App. 2011).

Opinion

711 S.E.2d 774 (2011)

HIGH POINT BANK AND TRUST COMPANY, Plaintiff,
v.
HOFFMAN BUILDERS, INC., Randy P. Hoffman, and Karen S. Hoffman, Defendants.

No. COA10-1181.

Court of Appeals of North Carolina.

June 7, 2011.

J. Brooks Reitzel, Jr., High Point, for Defendants-Appellants.

Roberson Haworth & Reese, P.L.L.C., High Point, by Shane T. Stutts, and Alan B. Powell, for Plaintiff-Appellee.

THIGPEN, Judge.

The trial court entered partial summary judgment in favor of Plaintiff, High Point Bank and Trust Company, against Defendants, Hoffman Builders, Inc., and Randy P. Hoffman. Summary judgment was not granted against the third Defendant, Karen S. Hoffman. We must decide whether the appeal of the interlocutory order involves a substantial right and is thus reviewable. We conclude the appeal does not involve a substantial right and must be dismissed.

The evidence of record tends to show that on 10 April 2007 Hoffman Development, Inc., ("Defendant Hoffman Development") purchased real property in Davidson County, North Carolina, and signed a Promissory Note ("Note") in the amount of $475,000.00, plus interest, indebting Defendant Hoffman Development to High Point Bank and Trust Company ("Plaintiff"). The Note was signed by Randy P. Hoffman ("Defendant Randy Hoffman") in his official capacity as Member and Manager of Defendant Hoffman Development. Also on 10 April 2007, Hoffman Builders, Inc. ("Defendant Hoffman Builders"), Defendant Randy Hoffman, and Karen S. Hoffman ("Defendant Karen Hoffman") individually executed three separate Commercial Guarantees as security for the Note.[1]

The property purchased by Defendant Hoffman Development originally had several structures, including a three bedroom, two bathroom home; however, Defendants demolished the home during the first year of the loan. Then, after approximately twelve months, Defendant Hoffman Development defaulted on the Note, and Plaintiff initiated *775 a foreclosure proceeding against the property. The net proceeds of the 28 May 2009 foreclosure sale were applied to the loan balance.[2] Plaintiff also exercised a right of setoff against Defendants' banking accounts maintained at High Point Bank and Trust Company in the amount of $23,964.16.

On 10 August 2009, Plaintiff filed a complaint alleging that Defendant Hoffman Development was in default on the Note and owed Plaintiff $91,123.25, plus interest and the costs and attorneys' fees associated with this action. Plaintiff further alleged that Defendant Hoffman Builders, Defendant Randy Hoffman, and Defendant Karen Hoffman were jointly and severally liable for the sum owed on the Note pursuant to their Guarantees. On 3 November 2009, Defendants filed an answer and counterclaim.

On 8 March 2010, Defendants made a motion for summary judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 56 (2009). On 15 March 2010, Plaintiff also moved for summary judgment. On 24 March 2010, Plaintiff voluntarily dismissed without prejudice its claims as to Defendant Hoffman Development, but not as to the remaining Defendants.

On 7 May 2010, the trial court entered an order stating that as to Defendant Hoffman Builders and Defendant Randy Hoffman, "there are no genuine issues of material fact in dispute[,]" and "Plaintiff is entitled to judgment as a matter of law in its favor." The trial court then decreed that Plaintiff recover from Defendant Hoffman Builders and Defendant Randy Hoffman, jointly and severally, $91,123.35 plus interest and $13,668.50 in attorneys' fees. The trial court denied Plaintiff's motion for summary judgment as to Defendant Karen Hoffman and also denied Defendants' motion for summary judgment.

From this order, Defendant Hoffman Builders and Defendant Randy Hoffman gave notice of appeal.

I: Interlocutory Appeal

In Defendants' first argument on appeal, they concede that their appeal from an order granting partial summary judgment is interlocutory but contend that failure to allow the appeal will impair Defendants' substantial rights.

"An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). "Such a prohibition promotes judicial economy by preventing fragmentary appeals." Id.

"There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b)[3] or (2) if the trial court's decision deprives the appellant of a substantial right[4] which would be lost absent immediate review." CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C.App. 169, 171, 517 S.E.2d 151, 153 (1999) (quotation and citations omitted).

"Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is the plaintiff's right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries[.]" Camp v. Leonard, 133 N.C.App. 554, 557-58, 515 S.E.2d 909, 912 (1999) (quotation omitted). "This Court has created a two-part test to show that a substantial right is affected, requiring a party to show (1) the same factual issues would be *776 present in both trials and (2) the possibility of inconsistent verdicts on those issues exist[s]." Id., 133 N.C.App. at 558, 515 S.E.2d at 912 (quotation omitted). As "a general proposition[,]" "[i]t is usually necessary to resolve the question [of whether a substantial right is affected] ... by considering the particular facts of [each] case and the procedural context in which the order from which appeal was sought is entered." Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982).

"[T]he burden is on the appellant to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C.App. 682, 685, 513 S.E.2d 598, 600 (1999), appeal dismissed in part, disc. review denied, and cert. denied, 350 N.C. 836, 539 S.E.2d 293-94 (1999), aff'd per curiam, 351 N.C. 349, 524 S.E.2d 804 (2000) (quotation omitted).

In the present case, the trial court's grant of summary judgment to Plaintiff was a final disposition with respect to all claims against Defendant Hoffman Builders and Defendant Randy Hoffman.

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Cite This Page — Counsel Stack

Bluebook (online)
711 S.E.2d 774, 212 N.C. App. 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/high-point-bank-v-hoffman-builders-inc-ncctapp-2011.