Opinion
No. COA12–1428.
2013-06-4
John R. MINAR, Plaintiff, v. Carolyn Clark MURRAY, Defendant.
Higgins Benjamin, PLLC, by Stephen E. Robertson, for plaintiff appellant. Hill Evans Jordan & Beatty, PLLC, by Elaine Hedrick Ashley, for defendant appellee.
Appeal by plaintiff from order entered 7 June 2012 by Judge Susan R. Burch in Guilford County District Court. Heard in the Court of Appeals 27 March 2013. Higgins Benjamin, PLLC, by Stephen E. Robertson, for plaintiff appellant. Hill Evans Jordan & Beatty, PLLC, by Elaine Hedrick Ashley, for defendant appellee.
McCULLOUGH, Judge.
John R. Minar (“plaintiff”) appeals from an order of the trial court granting partial summary judgment in favor of Carolyn Clark Murray (“defendant”). Because the order from which plaintiff appeals is interlocutory and does not affect a substantial right of plaintiff's necessitating immediate appellate review, we dismiss his appeal.
I. Background
On 26 May 2010, plaintiff and defendant entered into a Separation Agreement and Property Settlement Agreement (the “Property Agreement”). Paragraph three of the Property Agreement addressed the parties' disposition of the marital residence. Pursuant to the terms of this paragraph, defendant was required to either “refinance, obtain an assumption, or otherwise fully satisfy the mortgage owed in [plaintiff]'s name to Chase Mortgage, so that [plaintiff] is removed from any liability therefore” within sixty days after execution of the Property Agreement. Paragraph three of the Property Agreement also required defendant to deposit $40,000.00 into her attorney's trust account, representing a “stipulated distributive award to [plaintiff] in exchange for his waiver of any marital right, title or interest in the marital residence.”
Paragraph three of the Property Agreement required plaintiff to execute a non-warranty or quitclaim deed transferring sole title in the residence to defendant “at the refinance closing, which shall be held until any rescission period is expired, or according to normal closing procedures.” Paragraph three of the Property Agreement further provided that “[i]n the event [defendant] rescinds the refinancing, or fails to qualify, or if for any reason the closing does not go through, then the deed shall be returned to [plaintiff] and not recorded and the sale provisions shall then apply.” Paragraph three of the Property Agreement then detailed specific provisions for the sale of the residence “[i]f a refinancing closing does not occur within sixty (60) days after execution” of the Property Agreement. In addition, paragraph three of the Property Agreement contained a provision requiring the parties to submit to quick notice arbitration in the event that “any dispute arises between the parties as to the listing or sale of the residence[.]”
On 2 June 2010, defendant applied to refinance the existing mortgage on the residence through Edward Jones Mortgage, but defendant's application was denied on 23 June 2010. On 25 June 2010, defendant applied to refinance the existing mortgage on the residence through Carolina Farm Credit, and defendant's application was ultimately approved on 26 May 2011.
On 9 August 2010, following the expiration of the sixty-day period for performance under the Property Agreement, plaintiff sent defendant an Exclusive Right to Sell Listing Agreement requesting defendant's signature to authorize listing and sale of the residence by W.C. Thrift and Company, Inc. Defendant refused to sign the agreement.
On 16 December 2010, plaintiff filed a verified complaint for breach of contract and specific performance, alleging that defendant had failed to refinance, obtain an assumption, or otherwise fully satisfy the existing mortgage on the residence within the prescribed sixty-day time line pursuant to the Property Agreement. Plaintiff further alleged that defendant failed to list the home with a mutually agreeable realtor pursuant to the sale provisions of the Property Agreement and that defendant had declined to participate in quick notice arbitration on these issues.
On 24 February 2011, defendant filed a verified answer, affirmative defenses, and counterclaims, and on 28 September 2011, following the trial court's grant of defendant's motion for leave to amend, defendant filed her second amended answer, affirmative defenses, and counterclaims. In her second amended answer, defendant admitted that “as of the date of filing of Plaintiff's Complaint, she had been unable to refinance the existing mortgage on the marital home despite her efforts to do so, and that the home had not been listed with a realtor.” Defendant counterclaimed that plaintiff had breached the terms of the Property Agreement by (1) failing and refusing to cooperate in selling the marital residence to a bona fide purchaser, (2) removing a built-in grill from the marital residence, and (3) retaining the full amount of the income tax refund for the tax year 2010 for both federal and state returns.
On 12 September 2011, defendant filed a motion for summary judgment, supported by her own affidavit and other supporting documents. On 26 January 2012, defendant filed an amended affidavit and supporting documents in support of her motion for summary judgment. In her summary judgment motion, defendant alleged that on 1 July 2010, plaintiff received a bona fide offer from defendant's father to purchase the residence. Defendant alleged that her father was pre-qualified for the purchase of the residence by Envoy Mortgage on 15 July 2010. Defendant alleged that plaintiff refused to sell the residence to defendant's father, thereby thwarting her efforts to otherwise satisfy the mortgage obligation within the sixty-day time frame imposed by paragraph three of the Property Agreement.
In her affidavit, defendant stated that her father had made a bona fide offer to purchase the residence on 1 July 2010 “in order to help get the existing mortgage out of the Plaintiff's name pursuant to the [Property] Agreement [.]” In support of her statement, defendant attached an Offer to Purchase Real Estate executed by her father. However, this document was dated 25 August 2010. In her affidavit, defendant further stated that plaintiff refused to sell the residence to defendant's father, despite that defendant's “objective was to remove the Plaintiff's name and interests from the Property pursuant to the [Property] Agreement and in a timely fashion.”
On 19 September 2011, plaintiff filed an affidavit in opposition to defendant's motion for summary judgment, stating that the plain and unambiguous language of the Property Agreement required the consummation of a closing on the residence within the sixty-day time period, which defendant failed to do. Plaintiff stated that multiple issues of fact remained for determination by the trial court, including, inter alia, “whether the defendant was able to refinance, assume or otherwise satisfy the mortgage no later [than] July 25, 2010.”
On 25 April 2012, the trial court held a hearing on defendant's summary judgment motion. On 7 June 2012, the trial court entered an order granting partial summary judgment in favor of defendant. In its order, the trial court found as fact that “Defendant was unable to obtain refinancing of the property within the 60 day period; however, Defendant's father obtained a commitment for financing upon his purchase of the residence within that 60 day time period. Such a transfer to the Defendant's father would remove the mortgage debt from the Plaintiff's name.” The trial court further found that “Defendant advised Plaintiff of this commitment and her intent for her father to purchase the residence[,]” that “Plaintiff refused to sell the residence to Defendant's father[,]” that “Defendant attempted to perform under the agreement and to ‘otherwise fully satisfy the mortgage owed in [Plaintiff's] name to Chase Mortgage’ within 60 days after the execution of the Agreement[,]” and that “Plaintiff's actions alone prevented Defendant's compliance.” Accordingly, the trial court concluded that “there is no genuine issue of material fact with respect to Defendant's tender of performance under the agreement for the disposition of the marital residence[,]” because “[t]he sale of the residence to Defendant's father would effectively remove the mortgage debt from the Plaintiff's name and would accomplish the clear objective of the provision.” The trial court ordered specific performance in favor of defendant for the transfer of title and payment of the mortgage debt on the residence and held defendant's remaining counterclaims open pending compelled arbitration. On 6 July 2012, plaintiff entered notice of appeal from the trial court's order granting partial summary judgment in favor of defendant.
II. Dismissal of Interlocutory Appeal
The trial court's order from which plaintiff presently appeals is an order granting partial summary judgment. As both plaintiff and defendant recognize, the trial court's order does not address defendant's two remaining counterclaims concerning plaintiff's removal of the built-in grill from the marital residence and his retention of the income tax refund for the tax year 2010.
“Any order resolving fewer than all of the claims between the parties is interlocutory.” McCutchen v. McCutchen, 360 N.C. 280, 282, 624 S.E.2d 620, 622–23 (2006).
Interlocutory orders are appealable before entry of a final judgment if (1) the trial court certifies [pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b) ] there is no just reason to delay the appeal of a final judgment as to fewer than all of the claims or parties in an action or (2) the order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.
Id. at 282, 624 S.E.2d at 623 (internal quotation marks and citations omitted). Here, the trial court did not certify its order pursuant to Rule 54(b); therefore, the burden is on plaintiff to present this Court with “ ‘sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.’ “ Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338 (2005) (quoting N.C.R.App. P. 28(b)(4)). “Admittedly the ‘substantial right’ test for appealability of interlocutory orders 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.” Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). “Essentially a two-part test has developed—the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.” Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990).
Defendant has moved this Court to dismiss plaintiff's appeal as interlocutory and not affecting a substantial right. To the contrary, plaintiff argues that because the trial court's order affects title to real property, it affects a substantial right of plaintiff necessitating our interlocutory review. In support of his argument, plaintiff principally relies on this Court's opinion in Watson v. Millers Creek Lumber Co., 178 N.C.App. 552, 631 S.E.2d 839 (2006), in which we stated that “ ‘interlocutory orders concerning title ... must be immediately appealed as vital preliminary issues involving substantial rights adversely affected.’ “ Id. at 554, 631 S.E.2d at 840–41 (quoting N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 48, 619 S.E.2d 495, 496 (2005)). However, a review of the facts and procedural context of Watson reveals that that decision is distinguishable from the present case.
In Watson, the plaintiffs entered into an installment land contract to purchase a five-acre tract of land from defendant Millers Creek Lumber Co., Inc. (“Millers Creek”), and the installment land contract was then recorded. Id. at 553, 631 S.E.2d at 840. The installment land contract provided that upon payment in full of the purchase price, Millers Creek would deliver to the plaintiffs a good and sufficient deed. Id. Although the plaintiffs timely complied with the terms of the installment contract, Millers Creek failed to deliver the deed to the plaintiffs. Id. Instead, Millers Creek conveyed the land to defendant John Counts (“Counts”), who then recorded the deed. Id. Subsequently, the plaintiffs filed a complaint against both defendants alleging, inter alia, claims for a resulting trust, constructive trust, and breach of contract. Id. The plaintiffs also twice filed notices of lis pendens. Id. at 553–54, 631 S.E.2d at 840. Defendant Counts filed a motion for summary judgment, which the trial court granted, thereby dismissing the action against him. Id. at 554, 631 S.E.2d at 840. The trial court also denied summary judgment in favor of the plaintiffs. Id. The plaintiffs appealed from the trial court's order, but because the defendant Millers Creek elected not to participate in the appeal, the appeal was interlocutory. Id. In concluding that the appeal was nonetheless proper, this Court quoted our Supreme Court's opinion in Stagecoach Village for the proposition that because the order concerned the issue of title to real property, the order involved a substantial right that was adversely affected. Id. at 554,631 S.E.2d at 840–41. This Court also noted that because “defendant Millers Creek stipulated that title to the disputed property rests in either plaintiffs or defendant Counts and their liability, if any, ‘cannot be determined until a final decision is entered on appeal[,]’ “ the plaintiffs' appeal was properly before this Court. Id. at 554–55, 631 S.E.2d at 841.
Unlike Watson, here there is no dispute as to who holds legal title to the residence. The issues relating to title of the marital residence concern only an interpretation of contract terms contained in the parties' voluntary Property Agreement. Thus, there is no need to resolve the issue of legal title as a prerequisite to deciding the remaining claims in the case. Moreover, in the present case, the remaining claims concerning plaintiff's removal of the built-in grill and retention of the income tax return are in no way contingent on the resolution of the disposition of the residence pursuant to the terms of the Property Agreement. In addition, defendant has not stipulated that the trial court's order granting partial summary judgment affects a substantial right of plaintiff's requiring immediate appellate review before a resolution of the remaining claims can be had.
In FMB, Inc. v. Creech, 198 N.C.App. 177, 679 S.E.2d 410 (2009), we likewise considered the plaintiff's argument that because the summary judgment order appealed from resolved the plaintiff's claim for specific performance of an option and contract to purchase real estate and, therefore, concerned title to property, the trial court's order adversely affected a substantial right. Id. at 180, 679 S.E.2d at 412. In distinguishing Watson and dismissing the appeal as interlocutory, this Court emphasized: “First, there is no stipulation in this case, which was a key factor in the determination in Watson that the order was immediately appealable. Second, there is no dispute in this case as to who had legal title to the property.” Id. at 181,679 S.E.2d at 413.
Furthermore, in Stanford v. Paris, 364 N.C. 306, 698 S.E.2d 37 (2010), our Supreme Court recently clarified the holding in Stagecoach Village, the sole authority relied upon in Watson for support of the proposition that orders concerning title to real property adversely affect a substantial right warranting immediate appellate review:
Stagecoach Village was a condemnation case. This Court has said that in condemnation cases, after a hearing pursuant to N.C.G.S. § 136–108, appeal of an issue affecting title to land or area taken by the State is mandatory and the interlocutory appeal must be taken immediately. See Stagecoach Vill., 360 N.C. at 48, 619 S.E.2d at 496;Rowe, 351 N.C. at 176, 521 S.E.2d at 710;N.C. State Highway Comm'n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967), modified, Rowe, 351 N.C. at 176–77, 521 S.E.2d at 710. The holding that appeal of an interlocutory order affecting title to land and area taken is mandatory is in the context of condemnation cases. Disregarding the words “in condemnation cases” misconstrues the holdings in Stagecoach Village, Rowe, and Nuckles that such interlocutory appeals are mandatory.
Id. at 312, 698 S.E.2d at 41. In light of our Supreme Court's opinion in Stanford, we conclude that outside of the condemnation context, the fact that an interlocutory appeal may affect title to land does not automatically render an interlocutory appeal permissible. The appellant, in this case plaintiff, must still demonstrate that the particular order would adversely affect a substantial right of the appellant if not addressed prior to a final judgment in the case.
Aside from Watson, plaintiff likens the facts and procedural context of the present case to that presented in Phoenix Ltd. P'ship of Raleigh v. Simpson, 201 N.C.App. 493, 688 S.E.2d 717 (2009), in which this Court held that a trial court's order granting specific performance to the plaintiff and requiring the defendants to convey certain real property to the plaintiff affected a substantial right. However, plaintiff overlooks the fact that, in Phoenix, as in Watson, resolution of the remaining claims related to the parties' performance under a five-year lease contract could not move forward until the question of who held title to the property subject to the contractual agreement was finally decided. Id. at 495–99,688 S.E.2d at 719–21. In addition, although plaintiff acknowledges our Supreme Court's opinion in Stanford, he nevertheless asserts that “this Court continues to grant interlocutory consideration of orders concerning title to property,” citing Bodie Island Beach Club Ass'n, Inc. v. Wray, ––– N.C.App. ––––, 716 S.E.2d 67 (2011). Again, however, plaintiff neglects that Bodie Island involved an action to set aside a deed on the theories of fraud and undue influence. Id. at ––––, 716 S.E.2d at 70. Citing Watson without discussion, we allowed the interlocutory appeal as affecting a substantial right.
Here, as we have already explained, there is no dispute as to who holds legal title to the residence, unlike the issues of competing deeds or fraudulently conveyed deeds presented in Watson, Phoenix, and Bodie Island. Although the trial court's order in the present case grants specific performance in favor of defendant and concerns title to the marital residence, the issue resolved by the trial court's order involves only construction and interpretation of a voluntary contractual agreement between the parties, not a title dispute. In addition, the remaining claims in the present case are in no way dependent upon the resolution of the disposition of the residence, as was the case in Watson, Phoenix, and Bodie Island. Accordingly, we conclude that plaintiff has failed to make the requisite showing that the trial court's partial summary judgment order affects a substantial right that would be adversely affected absent immediate appellate review. “Where the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed.” Lucas, 168 N.C.App. at 518, 608 S.E.2d at 338. We therefore dismiss plaintiff's interlocutory appeal.
III. Conclusion
Because plaintiff has failed to make the requisite showing that absent immediate appellate review of the trial court's order granting partial summary judgment in favor of defendant in the present case, a substantial right of his would be adversely affected, we dismiss plaintiff's appeal as interlocutory.
Dismissed. Judges BRYANT and HUNTER, JR., (ROBERT N.), concur.
Report per Rule 30(e).