Opinion
No. COA11–1139.
2012-08-7
In re GRANDFATHER VISTAS LITIGATION.
Jackson & McGee by Sam McGee and Pro Hac Vice, Gould & Ratner LLP by Richard S. Reizen, Robert A. Carson, and Mark E. Abraham for plaintiff-appellants. K & L Gates LLP by Amy Pritchard Williams and Glenn E. Ketner, III for defendant-appellee.
Appeal by plaintiffs from order entered 24 January 2011 by Judge W. Erwin Spainhour which memorialized an earlier ruling by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 February 2012. Jackson & McGee by Sam McGee and Pro Hac Vice, Gould & Ratner LLP by Richard S. Reizen, Robert A. Carson, and Mark E. Abraham for plaintiff-appellants. K & L Gates LLP by Amy Pritchard Williams and Glenn E. Ketner, III for defendant-appellee.
STEELMAN, Judge.
Plaintiff's appeal is interlocutory, and plaintiff has failed to demonstrate that the order affects a substantial right. Plaintiff's appeal is dismissed.
I. Factual and Procedural History
On 31 July 2009, David and Patricia Brooks, Jay and Cynthia Johnson, and Richard and Kathleen Riehl, along with other plaintiffs, filed an amended complaint against a number of defendants, including SunTrust Mortgage, Inc. (SunTrust). The complaint sought damages; rescission of loan agreements, purchase contracts, and other agreements; treble damages; and attorney's fees. The basis of these claims was the development, marketing, sale, and financing of real estate lots in Grandfather Vistas at Blowing Rock, located in Caldwell County. Defendants included the developers of the real estate, attorneys, real estate appraisers, and lenders that financed the purchases of the subdivision lots. SunTrust was the lender for the plaintiffs Brooks, Johnson, and Riehl, who were 6 of over 75 plaintiffs named in the amended complaint. As to SunTrust, plaintiffs alleged claims for negligent misrepresentation, conversion, civil conspiracy, and negligence. On 19 August 2010, SunTrust filed a motion for summary judgment.
This motion came on for hearing before Judge Timothy L. Patti on 29 October 2010. Judge Patti orally granted SunTrust's motion. Prior to signing a written order, Judge Patti retired. On 24 January 2011, Judge Spainhour entered a written order, memorializing Judge Patti's prior ruling, pursuant to N.C.R. Civ. P. 63, dismissing the claims of the plaintiffs Brooks, Johnson, and Riehl against SunTrust.
Plaintiffs Brooks, Johnson, and Riehl appeal.
II. Interlocutory Appeal
“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. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). The trial court's order only disposed of plaintiff's claims against SunTrust and did not determine the entire controversy. The order appealed from is interlocutory. An interlocutory order is not immediately appealable except in two instances: (1) the trial court certifies that there is no just reason for delay pursuant to N.C.R. Civ. P. 54(b) and (2) the interlocutory order affects a substantial right which will be lost if the order is not reviewed before a final judgment is entered. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994).
In the instant case, the trial court did not certify its order as immediately appealable pursuant to Rule 54(b). Therefore, the burden is on plaintiffs to establish that a substantial right will be lost unless the trial court's order is immediately reviewed. Jeffreys, 115 N.C.App. at 380, 444 S.E.2d at 254. “[T]he ‘substantial right’ test ... is more easily stated than applied. It 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 appeal is sought was entered.” Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 334, 299 S.E.2d 777, 780 (1983) (internal quotation marks and citation omitted).
Plaintiffs acknowledge that their appeal is interlocutory. However, they argue that the order dismissing SunTrust from the case affects a substantial right “to have the merits of the case against all defendants decided in one trial, by one jury, in order to avoid the potential for inconsistent verdicts[.]” It is well-established that, before a substantial right is affected on this basis, it must be shown that the same factual issues are present in both trials and that plaintiffs will be prejudiced by the possibility that inconsistent verdicts may result. Moore v. Nissan of Statesville, 115 N.C.App. 423, 426, 444 S.E.2d 694, 697 (1994). Avoiding separate trials on different issues does not affect a substantial right. J & B Slurry Seal Co. v. Mid–South Aviation, Inc., 88 N.C.App. 1, 7, 362 S.E.2d 812, 816 (1987).
In the instant case, the trial court specifically set forth the basis for granting SunTrust's summary judgment motion:
SunTrust Mortgage sought entry of summary judgment on the ground that the Brooks, the Johnsons and the Riehls had all signed binding releases of their claims against SunTrust Mortgage in exchange for valuable consideration, namely modifications of their loan obligations, entitling SunTrust Mortgage to judgment as a matter of law.
The basis of the granting of summary judgment was the execution of a “binding release” in favor of SunTrust by plaintiffs. This basis is peculiar to SunTrust, and not applicable to the claims of plaintiffs against the other defendants. Plaintiffs have failed to establish that a substantial right will be lost unless the trial court's order is immediately reviewed. Plaintiff's appeal is dismissed.
DISMISSED. Judges GEER and HUNTER, JR., ROBERT N. concur.
Report per Rule 30(e).