Small v. Parker

646 S.E.2d 658, 184 N.C. App. 358, 2007 N.C. App. LEXIS 1398
CourtCourt of Appeals of North Carolina
DecidedJuly 3, 2007
DocketNo. COA06-1336.
StatusPublished

This text of 646 S.E.2d 658 (Small v. Parker) 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
Small v. Parker, 646 S.E.2d 658, 184 N.C. App. 358, 2007 N.C. App. LEXIS 1398 (N.C. Ct. App. 2007).

Opinion

MARTIN, Chief Judge.

Defendant-appellant Sinclair Avant Parker appeals an order of the Pender County Superior Court denying his motion to enforce a mediated settlement agreement ("Agreement"), granting the plaintiff's motion to set aside a consent order entered upon the agreement and transferring the proceedings to the Pender County District Court. For the reasons stated below, we affirm and remand for further proceedings.

The evidence before the trial court tended to show that defendant and plaintiff Elaine Ford Small were married on 14 April 1967 and divorced on 31 August 1990. The parties entered into an agreement to divide their assets on 29 May 1990, with some of the property going to their three children and the remainder to the plaintiff. On 6 May 1999, plaintiff filed a complaint seeking specific performance of the separation agreement. Defendant answered that the agreement was no longer enforceable, had been modified by the parties, and that he had made improvements to the real property for which he was entitled to compensation if he was determined to be no longer entitled to the property.

On 31 March 2000, the parties attended mandatory mediation at the office of Wilmington attorney Carter Lambeth. The parties were accompanied by counsel. At the mediation, the parties executed a document entitled "Memorandum of Consent Order in Mediated Settlement Conference." The document was signed by both parties and their counsel. It required the defendant to pay $47,000 to the plaintiff for her interest in real property located at Rocky Point, North Carolina. Upon the payment, plaintiff would execute a quitclaim deed conveying her interest in the property to the defendant. Defendant would also simultaneously transfer some property in Pender County to plaintiff.

On 2 April 2000, two days after executing the agreement, plaintiff faxed her attorney informing him that she had changed her mind and asking him not to have the agreement entered as a court order. However, for reasons that are unclear from the record, the agreement was nevertheless signed by Superior Court Judge Ernest Fullwood on 10 April 2000 and made an order of the court.

Defendant attempted to tender the $47,000 to plaintiff on 11 August 2000. However, plaintiff's counsel declined the payment on 18 September 2000, stating that she deemed the mediation conference Agreement to be cancelled and void. The letter declining the payment stated that defendant had communicated with the plaintiff after the mediation *660conference, attempting to renegotiate the agreement and asking her to take a reduced sum since he was not in a position to fulfill his $47,000 obligation. In addition, plaintiff was concerned that defendant had not supplied the deeds he had agreed to provide.

On 27 January 2005, defendant filed a motion to enforce the agreement. On 11 May 2005, plaintiff sought to have the Agreement set aside. The Honorable Jay D. Hockenbury set aside the Agreement on 18 July 2006 and transferred the action to Pender County District Court. This appeal follows.

Interlocutory

We first note that the plaintiff has moved to dismiss this appeal as interlocutory. "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 party cannot immediately appeal an interlocutory order unless (1) a trial court enters a final judgment to fewer than all of the claims or parties in an action and certifies that there is no reason to delay the appeal or (2) the failure to grant immediate review would affect a substantial right. Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (citation omitted). Since the trial court has not entered the requisite certification, whether this appeal is interlocutory hinges on whether the failure to grant immediate review would affect a substantial right.

A right is substantial if it will be lost or irremediably and adversely affected if the trial court's order is not reviewed before a final judgment. RPR & Assocs. v. Univ. of N.C.-Chapel Hill, 153 N.C.App. 342, 347, 570 S.E.2d 510, 514 (2002). In determining whether a substantial right will be prejudiced by delaying an interlocutory appeal, our Supreme Court has emphasized that "[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which the appeal is sought is entered." Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982) (citation omitted).

In an analogous case involving a wife's appeal of the dismissal of her equitable distribution counterclaims, we have held that the appeal was not interlocutory. Small v. Small, 93 N.C.App. 614, 617-18, 379 S.E.2d 273, 275-76 (1989). The principle behind permitting immediate review of such dismissals is that a subsequent and successful appeal would then require additional trial proceedings that could expose the parties to potentially inconsistent verdicts. Davidson v. Knauff Ins. Agency, Inc., 93 N.C.App. 20, 25, 376 S.E.2d 488, 491 (1989). See Whalehead Props. v. Coastland Corp., 299 N.C. 270, 278, 261 S.E.2d 899, 904 (1980) ("We are of the opinion that denial of defendants' claim . . .

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Related

Small v. Small
379 S.E.2d 273 (Court of Appeals of North Carolina, 1989)
State v. Crews
209 S.E.2d 462 (Supreme Court of North Carolina, 1974)
RPR & Associates, Inc. v. University of North Carolina-Chapel Hill
570 S.E.2d 510 (Court of Appeals of North Carolina, 2002)
Davidson v. Knauff Insurance Agency, Inc.
376 S.E.2d 488 (Court of Appeals of North Carolina, 1989)
Whalehead Properties v. Coastland Corp.
261 S.E.2d 899 (Supreme Court of North Carolina, 1980)
Guilford County v. Eller
553 S.E.2d 235 (Court of Appeals of North Carolina, 2001)
Shipman v. Shipman
586 S.E.2d 250 (Supreme Court of North Carolina, 2003)
Davis v. Davis
631 S.E.2d 114 (Supreme Court of North Carolina, 2006)
Bernick v. Jurden
293 S.E.2d 405 (Supreme Court of North Carolina, 1982)
Brundage v. Foye
454 S.E.2d 669 (Court of Appeals of North Carolina, 1995)
Veazey v. City of Durham
57 S.E.2d 377 (Supreme Court of North Carolina, 1950)
King v. . King
35 S.E.2d 893 (Supreme Court of North Carolina, 1945)

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Bluebook (online)
646 S.E.2d 658, 184 N.C. App. 358, 2007 N.C. App. LEXIS 1398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-parker-ncctapp-2007.