Opinion
No. COA15–803.
01-05-2016
Carlos GARCIA, Sayda Martinez, Maria Teresa Anguiano Pacheco, Margarita Hernandez, and Carlos Rodriguez Garcia, Plaintiffs, v. BOXER PROPERTY MANAGEMENT CORPORATION, CAPCO 1998–D7 Central Avenue Mall, LLC, 5471 Central Avenue, LLC, Lynn Parker, John Marlowe, and LNR Partners, Inc., Defendants. and 5471 Central Avenue, LLC, Third Party Plaintiff[,] v. City of Charlotte, Third Party Defendant.
Stiles & Associates, LLC, by Graham Stiles, for Plaintiffs Carlos Garcia and Sayda Martinez. DeVore Acton & Stafford, P.A., by Fred W. DeVore, III, and F. William DeVore, IV, for Defendant 5471 Central Avenue, LLC.
Stiles & Associates, LLC, by Graham Stiles, for Plaintiffs Carlos Garcia and Sayda Martinez.
DeVore Acton & Stafford, P.A., by Fred W. DeVore, III, and F. William DeVore, IV, for Defendant 5471 Central Avenue, LLC.
Opinion
Appeal by Plaintiffs Carlos Garcia and Sayda Martinez from order entered 26 November 2014 by Judge Yvonne Mims–Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 December 2015.
STEPHENS, Judge.
The parties who bring forward this interlocutory appeal argue that the appealed-from order for partial summary judgment implicates a substantial right entitling them to immediate appellate review. Because this case does not involve the same facts as those of the other Plaintiffs whose claims remain pending for trial, and because we see no significant risk of inconsistent verdicts should we decline to review this matter immediately, we dismiss this appeal.
Factual and Procedural History
In their complaint, Plaintiffs Carlos Garcia and Sayda Martinez (“Garcia and Martinez”), along with Plaintiffs Maria Teresa Anguiano Pacheco, Margarita Hernandez, and Carlos Rodriguez Garcia, allege that each of them entered into a lease of retail space at a location known as Eastland Mall in Charlotte. The named defendants, including Defendants 5471 Central Avenue, LLC (“the Mall”), Boxer Property Management Corporation (“Boxer”), and John Marlowe (collectively, “Defendants”), were alleged to be the owners, managers, and/or leasing agents of Eastland Mall. At the time the leases were allegedly entered into, Eastland Mall was closed to the public, but Plaintiffs contend that they paid deposits on the leased spaces and expended funds on goods, materials, furniture, city permits, and other items in preparation for what Defendants and their agents assured them would be a May 2012 opening. At some point—the record on appeal is not clear on the exact date when or whether each Plaintiff discovered this fact—the opening date was pushed back from May 2012, first to June of that year, then to July, and finally to August. However, in August 2012, some Plaintiffs were informed that Eastland Mall would not reopen and that their leases were either being rejected or terminated.
On 25 June 2013, Plaintiffs filed their complaint, stating claims for breach of contract, unfair and deceptive trade practices, fraud, and negligence, alleging that the named defendants and their agents knew from the time their leases were allegedly entered into and through August 2012 that Eastland Mall would be sold to the City of Charlotte and would never re-open under the terms of Plaintiffs' purported leases. Defendants filed a motion to dismiss, answer, and affirmative defenses and counterclaims on 31 July 2013, and an amended motion to dismiss, answer, and affirmative defenses and counterclaims on 23 August 2013. As noted supra, named defendants Capco 1998–D7 Central Avenue Mall, LLC, Lynn Parker, and LNR Partners, Inc., were never served with a summons and the complaint. The record on appeal includes a motion for judgment on the pleadings by Defendants dated 12 November 2013, but lacking any file stamp. On 4 December 2013, arguments on Defendants' motions to dismiss were heard in Mecklenburg County Superior Court, the Honorable Robert Ervin, Judge presiding. The record on appeal includes a motion to dismiss pursuant to Rule of Civil Procedure 12(b)(6) by named defendant Stephen Dickey and a motion to amend answer to include third party complaint by the Mall, both dated 26 June 2014, although neither bears a file stamp. By order entered 19 August 2014, the trial court allowed the Mall's motion to amend its answer to include a third party claim for breach of contract and indemnification against the City of Charlotte. The Mall's and Boxer's motions to dismiss were denied by an order dated October 2014. The date written on the order is not fully legible and the order itself is not file stamped. That order also notes that Plaintiffs had voluntarily dismissed their claims against Defendant John Marlowe, rendering his pending motion to dismiss moot. Named defendant Stephen Dickey is not specifically mentioned in the court's order, and his name is omitted from the caption of filings in the matter from November 2014 forward.
Although Stephen Dickey was named as a defendant in Plaintiffs' complaint, his motion to dismiss is the only other filing by him in the record on appeal.
On 27 August 2014, Defendants moved for summary judgment, arguing
Nothing in the record on appeal explains why Defendants moved for summary judgment when their amended motion to dismiss was still pending in the trial court.
that none of the alleged leases were enforceable in that: (1) one or more material terms of the lease were omitted; (2) many of the leases were unexecuted or rejected; (3) many of the leases did not have a commencement date; (4) many of the leases were month to month and were terminated before the tenants took possession; and (5) the leases, if any, were terminated before any of the tenants took possession due to the sale of the mall to the City of Charlotte.
That motion was heard on 5 November 2014 in Mecklenburg County Superior Court, the Honorable Yvonne Mims–Evans, Judge presiding. A judgment and order dismissing all claims of Garcia and Martinez was signed on 19 November 2014 and entered on 26 November 2014. Although the motion for summary judgment was filed by Defendants, the order refers to the motion as being filed only by the Mall. Neither Plaintiffs nor the Mall were notified of the order until 16 January 2015. Garcia and Martinez filed and served notice of appeal as to the Mall on 3 February 2015.
The Mall's Motion to Dismiss
As Garcia and Martinez acknowledge in their statement of the grounds for appellate review, this appeal is interlocutory. On 28 September 2015, the Mall filed in this Court a motion to dismiss the appeal as interlocutory. That motion was referred to the panel that would be assigned to hear the appeal by order entered 14 October 2015. Garcia and Martinez have not filed any response to the Mall's motion to dismiss, apparently electing to rely on the statement in their brief. As discussed below, we dismiss this interlocutory appeal as not properly before us. Accordingly, we do not reach the merits of Garcia's and Martinez's arguments.
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. 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, 361–62, 57 S.E.2d 377, 381 (1950) (citations omitted). “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 Grp., Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993) (citations omitted). However,
immediate appeal of interlocutory orders ... 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 [pursuant to Rule of Civil Procedure 54(b) ] there is no just reason for delay.... Second, immediate appeal is available from an interlocutory order ... which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (citations and internal quotation marks omitted). The record on appeal contains no Rule 54(b) certification. However, Garcia and Martinez assert that,
if not immediately appealed, [Garcia's and Martinez's] claims for fraud and unfair and deceptive practices will not be tried in front of the same jury as the other three Plaintiffs' same claims, which could result in inconsistent verdicts by different juries based upon the same set of facts and issues. Orders that result in the possibility of inconsistent verdicts in two or more trials are immediately appealable if the same factual issues would be present in both trials. Callanan v. Walsh, 743 S.E.2d 686, 689 (N.C.App .2013).
We are not persuaded by this contention.
We first note that the facts and circumstances in Callanan are easily distinguishable from those presented in Garcia's and Martinez's appeal. Callanan involved the dissolution of a marriage wherein the parties first litigated, inter alia, the validity of a premarital agreement that purported to require the defendant to pay the plaintiff $450,000.00 as part of an equitable distribution (“ED”) action. Callanan v. Walsh, 228 N.C.App. 18, 19–20, 743 S.E.2d 686, 687–88 (2013). While an appeal in the ED matter was pending, the “plaintiff filed a suit against [the] defendant alleging that [the] defendant had failed to pay [the] plaintiff $450,000.00 as pursuant to their premarital agreement. In her complaint, [the] plaintiff sought damages and specific performance.” Id. at 20, 743 S.E.2d at 688. The trial court denied the defendant's motion to dismiss the action for damages and specific performance, and the defendant appealed from that interlocutory order. Id. at 21, 743 S.E.2d at 688. This Court held that the defendant had shown that a substantial right would be affected in the absence of immediate review on two bases:
First, it is obvious that the same factual issue is being presented here as was presented in the ED suit. In [the appeals in the ED action] we clearly articulated that the issue being considered there was the treatment of the purported prenuptial agreement[,] and the treatment of a certain $450,000[.00] matter[.] Here, [the] plaintiff filed the present suit to demand performance by [the d]efendant to the terms and conditions of the same premarital agreement, and she specifically sought payment of $450,000.00. Thus, the trial court here is being presented with the same issue as the trial court in the ED action. Second, because the present suit was filed in superior court and the ED suit was adjudicated in district court there is a possibility of inconsistent verdicts, as two different venues are being asked to review and decide the same issues and circumstances.
Id. at 22, 743 S.E.2d at 689 (internal citations omitted). The Callanan Court reached the merits of the defendant's arguments and remanded the matter to the superior court for dismissal because “the district court's jurisdiction has already been invoked regarding this matter [in the ED suit], and the superior court lack[ed] jurisdiction to adjudicate [the] plaintiff's claim.” Id. at 23, 743 S.E.2d at 690. The matter here, unlike that in Callanan, does not involve two trials between the same parties or two cases on exactly the same facts and legal issues in different forums. In other words, Callanan is inapposite to Garcia's and Martinez's appeal. Thus, Garcia and Martinez have not established that any substantial right will be irreparably harmed in the absence of immediate review in their statement of the grounds for appellate review. “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 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.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994) (citations omitted; emphasis added).
Further, the record on appeal plainly demonstrates that Garcia and Martinez bear no risk of inconsistent verdicts should this interlocutory appeal not be heard immediately. Although “[a] substantial right ... is considered affected if there are overlapping factual issues between the claim determined and any claims which have not yet been determined because such overlap creates the potential for inconsistent verdicts resulting from two trials on the same factual issues[,]” Liggett Grp., Inc., 113 N .C.App. at 24, 437 S.E.2d at 677 (citation and internal quotation marks omitted), our review of the claims and allegations in the complaint reveals that there is little if any overlap of the pertinent factual issues as to each individual Plaintiff.
The essence of Plaintiffs' claims are that the Mall fraudulently or negligently made promises to and/or withheld information from them, to wit, that the Mall entered into leases with them and informed them that Eastland Mall would open in May 2012 despite knowing the property would actually be sold to the City of Charlotte. The complaint does not allege that any misleading information is contained in the leases, which each Plaintiff entered into independently from the other and on different dates, and, indeed, none of the contracts specifies any commencement date. Instead, each lease lists the commencement date for the lease as “TBD”—to be determined. Plaintiffs allege that they were damaged by verbal promises and commitments about the opening date of Eastland Mall while not being informed about the pending sale. In turn, those alleged conversations and interactions were between individual Plaintiffs and agents of the Mall. Thus, Plaintiffs' ability to prevail on their claims will turn on facts unique and specific to each individual Plaintiff: for example, which agent of the Mall spoke to each Plaintiff about an opening date and other pertinent issues, exactly what the agent said and when, what the agent knew or did not know about the sale of Eastland Mall at that time, and so on. The fact that a particular agent said one thing to one Plaintiff based on the agent's knowledge at one point in time does not necessarily have any relationship to what an agent said to another Plaintiff based on the agent's knowledge at a different point in time. Therefore, we see no risk of inconsistent verdicts simply because Garcia and Martinez may have their claims heard by a different jury than the other Plaintiffs. Accordingly, this interlocutory appeal does not implicate a substantial right of Garcia and Martinez and must be
DISMISSED.
Judges HUNTER, JR., and INMAN concur.
Report per Rule 30(e).