LCA Dev., LLC v. WMS Mgmt. Grp., LLC

• Court: Court of Appeals of North Carolina
• Decided: May 20, 2014
• Docket: 13-1467
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA13-1467 NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

LCA DEVELOPMENT, LLC,

Plaintiff,

v. Pitt County No. 12 CVS 3376 WMS MANAGEMENT GROUP, LLC,

Defendant.

Appeal by plaintiff from order entered 4 October 2013 by

Judge Alma L. Hinton in Pitt County Superior Court. Heard in

the Court of Appeals 6 May 2014.

Jordan Price Wall Gray Jones & Carlton, by Philip W. Paine, for plaintiff-appellant.

Lanier, King & Paysour, PLLC, by Steven F. Johnson II, for defendant-appellee.

HUNTER, Robert C., Judge.

LCA Development, LLC (“plaintiff”) appeals the order

granting WMS Management Group, LLC’s (“defendant’s”) motion for

judgment on the pleadings. On appeal, plaintiff argues that the

trial court erred by concluding that plaintiff breached the

agreement by failing to comply with the default provisions of -2- the contract and that defendant was entitled to judgment as a

matter of law.

After careful review, we dismiss plaintiff’s appeal as

interlocutory.

Background

Plaintiff owns two residential apartment complexes in Pitt

County, North Carolina (“the properties”). Defendant is a North

Carolina company that specializes in property management. On or

about 31 December 2011, plaintiff entered into an “Exclusive

Property Management Agreement” (“the agreement”) with defendant.

The agreement provided that defendant would, among other things:

manage the properties; use its “best efforts” to solicit,

secure, and maintain tenants; and collect all rents due. With

regard to default, the agreement, in paragraph 20, specifically

provided that:

If either party defaults in the performance of any of its obligations hereunder, in addition to any other remedies provided herein or by applicable law, the non- defaulting party shall have the right to terminate this Agreement, if, within thirty days after providing the defaulting party with written notice of the default and the intent to terminate, the default remains uncured.

Moreover, the agreement provided that plaintiff would:

Indemnify and hold [defendant] harmless to -3- the extent allowable by law from any and all costs, expenses, attorneys’ fees, suits, liabilities, damages or claims for damages, including but not limited to, those . . . in any way relating to the management of the Property by Agent or the performance or exercise of any duty, obligation or authority set forth herein or hereafter granted to [defendant], except to the extent that such may be the result of gross negligence or willful or intentional misconduct by [defendant].

Plaintiff claims that defendant failed to collect rents due from

the tenants and failed to use its best efforts to manage the

properties.

On 31 December 2012, plaintiff filed a complaint against

defendant asserting a breach of contract claim. On 25 February

2013, defendant filed an answer, counterclaim, and motion to

dismiss for failure to state a claim upon which relief can be

granted. With regards to its counterclaim, defendant contended

that plaintiff breached its contractual obligations by: (1)

failing to first notify defendant in writing of a default and of

its intent to terminate the agreement; (2) failing to provide

defendant 30 days to cure any default as provided in the

agreement; and (3) failing to indemnify and hold defendant

harmless for conduct not amounting to gross negligence or

willful or intentional misconduct. Plaintiff filed a response

to defendant’s counterclaim admitting that it did not provide -4- any written notice of default with notification of its intent to

terminate the agreement nor did it provide defendant 30 days to

cure any default.

On 30 August 2013, defendant filed a motion for judgment on

the pleadings on its breach of contract counterclaim. The

matter came on for hearing on 16 September 2013. The trial

court granted defendant’s motion for judgment on the pleadings.

Specifically, the trial court dismissed plaintiff’s claim for

breach of contract with prejudice and held that plaintiff is

liable to defendant on its counterclaim. Moreover, the trial

court ordered a trial be held to determine the amount of damages

plaintiff is liable to defendant. Before the trial on damages

occurred, plaintiff appealed.

Interlocutory Nature of Appeal

First, it should be noted that plaintiff is appealing an

interlocutory order. “An order is interlocutory if it is made

during the pendency of an action and does not dispose of the

case but requires further action by the trial court in order to

finally determine the entire controversy.” Trivette v. Yount,

__ N.C. App. __, __, 720 S.E.2d 732, 734-35 (2011), affirmed in

part, reversed in part on other grounds, and remanded, 366 N.C.

303, 735 S.E.2d 306 (2012). Here, because the trial court’s -5- order did not dispose of the entire case and ordered the amount

of defendant’s damages be determined at a trial, it is an

interlocutory order.1

[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay. N.C.G.S. § 1A-1, Rule 54(b) []. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a “substantial right.”

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579

(1999) (internal citations omitted). Because the trial court

did not certify its order as immediately appealable pursuant to

Rule 54(b), the burden is on plaintiff to establish that a

substantial right will be lost if the trial court’s order is not

immediately reviewed. Turner v. Norfolk S. Corp., 137 N.C. App.

138, 142, 526 S.E.2d 666, 670 (2000); see also Jeffreys v.

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d

252, 254 (1994) (“It is not the duty of this Court to construct

arguments for or find support for appellant’s right to appeal

from an interlocutory order; instead, the appellant has the

1 In its brief, defendant claims that the trial court has stayed the trial on damages pending the appeal. However, this fact cannot be verified by the record. -6- burden of showing this Court that the order deprives the

appellant of a substantial right which would be jeopardized

absent a review prior to a final determination on the merits.”).

Plaintiff has failed to put forth any argument that this Court’s

failure to review the order immediately would deprive it of a

substantial right; in fact, plaintiff’s brief fails to include a

statement of grounds for appellate review or even mention that

the order is interlocutory. Furthermore, even if plaintiff

included an argument that the order affected a substantial

right, this Court has repeatedly held that “[i]t is well settled

that a judgment which determines liability but which leaves

unresolved the amount of damages is interlocutory and cannot

affect a substantial right[.]” Steadman v. Steadman, 148 N.C.

App. 713, 714, 559 S.E.2d 291, 292 (2002); see also Tridyn

Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d

443, 447 (1979) (holding that the trial court’s order granting

summary judgment as to liability but ordering a trial as to the

amount of damages was interlocutory and did not affect a

substantial right). Accordingly, plaintiff is appealing a non-

appealable interlocutory order, and we dismiss the appeal.

Conclusion -7- Because the trial court’s order is interlocutory and does

not affect a substantial right, we dismiss plaintiff’s appeal.

DISMISSED.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).