Opinion
NO. COA11-1381
10-16-2012
NANCY JO SMITH, Plaintiff, v. BERNARD MICHAEL SMITH, LIGHTHOUSE ENTERTAINMENT, INC., MARKETPLACE CINEMAS, LLC, PLANTATION REALTY COMPANY, LLC, DEEPAK PASI, JOEL T. CHEATHAM, III, COLE WHITT, DONALD SEIFERT, and CLEM SEIFERT, Defendants.
Weaver, Bennett & Bland, P.A., by Trent M. Grissom and Heather R. Hobgood, for plaintiff-appellee. J. W. Bryant, Law Firm, P.L.L.C., by John Walter Bryant and Amber Ivie Hayles, for defendant-appellant Bernard Michael Smith.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Vance County
No. 10 CVS 239
Appeal by Defendant from order entered 17 May 2011 by Judge R. Allen Baddour in Vance County Superior Court. Heard in the Court of Appeals 7 March 2012.
Weaver, Bennett & Bland, P.A., by Trent M. Grissom and Heather R. Hobgood, for plaintiff-appellee.
J. W. Bryant, Law Firm, P.L.L.C., by John Walter Bryant and Amber Ivie Hayles, for defendant-appellant Bernard Michael Smith.
HUNTER, JR., Robert N., Judge.
Bernard Michael Smith ("Defendant") appeals from a 26 April 2011 judgment in Vance County Superior Court in favor of Nancy Jo Smith ("Plaintiff") in the amount of $197,195.000 for breach of contract, punitive damages, constructive fraud, and unjust enrichment. Upon review, we dismiss the appeal as interlocutory.
I. Facts & Procedural History
Plaintiff and Defendant married on 9 August 1996. At that time, Defendant and Defendant's ex-wife each owned fifty percent (50%) of Kemp Entertainment, Inc. ("Kemp Entertainment"). Kemp Entertainment, in turn, owned sixty percent (60%) of Marketplace Cinemas, LLC ("Marketplace Cinemas"), a Vance County member-managed company that operates a movie theater.
At the time of the marriage of Plaintiff and Defendant, Plaintiff worked as a full-time nurse in an intensive care unit. In late 1999, Plaintiff began training under Tommy McGhee, the Operations Manager at Marketplace Cinemas, in anticipation of replacing him after his retirement the following year. During her training period from the end of 1999 until the summer of 2000, Plaintiff did not receive a salary. After McGhee's retirement, Plaintiff took on the position of Operations Manager and received a salary of $500.00 per week. In this capacity, Plaintiff managed the day-to-day operations of the movie theater, including "open[ing] and clos[ing], count[ing] the money, [and] oversee[ing] the staff". In 2000, Plaintiff left her nursing career to work full-time at the movie theater.
In early 2000, Defendant purchased the other half of Kemp Entertainment from his ex-wife and changed the name of the company to Lighthouse Entertainment, Inc. ("Lighthouse Entertainment"). Plaintiff alleges around this time Defendant promised to transfer fifty percent (50%) ownership interest in Lighthouse Entertainment to her. At trial, Plaintiff testified that Defendant told Plaintiff he actually assigned the stock to her:
A: We had decided that that -- the 50 percent of Kemp Entertainment, which we were going to change the name of that company, would then be transferred to me.
Q: And was there a time he told you that that had been taken care of?
A: Yes, sir. I can't remember the exact date, but he had went to the attorney's office after the buyout had been completed, and he was going to get the stock certificates issued, and he had said he had issued them 50 percent to me.
. . . .
Q: . . . [H]e had not only told you he intended to transfer the company to you, but in fact had taken care of that.
A: Yes, sir.
In January 2002, Lighthouse Entertainment opened a corporate office, and Plaintiff began serving as the General Manager of the movie theater. In this capacity, Plaintiff took on greater responsibilities, including "deal[ing] with the film companies and other vendors, and pa[ying] bills, do[ing] payroll, accounting, that type thing." From January 2002 until January 2005, Plaintiff received no salary while serving as General Manager.
From January 2002 to January 2005, Lighthouse Entertainment expanded its operations by starting a limousine business and a children's entertainment business. Plaintiff testified at trial that she participated significantly in this expansion.
While serving as General Manager, Plaintiff signed loan documents for Lighthouse Entertainment and Marketplace Entertainment as the corporate secretary and as a personal guarantor for the loans. Specifically, Plaintiff signed for loans to Marketplace Cinemas for $1,250,000.00 and $50,000.00 as well as a loan to Lighthouse Entertainment for $100,000.00. When Lighthouse Entertainment defaulted on the $100,000.00 loan, Plaintiff paid $50,000.00 plus interest as required by the loan contract.
In 2005, Plaintiff accepted an annual salary of $10,000.00. As Plaintiff testified, "I paid myself just enough to be able to contribute the maximum contribution to a retirement account." In March 2006, Plaintiff and Defendant separated. Plaintiff received a salary of $2,000.00 a month from March 2006 through August 2006. After August 2006, Plaintiff received no compensation from Lighthouse Entertainment.
In 2009, Defendant began to indicate on corporate tax returns that he was the sole owner of Lighthouse Entertainment, and a dispute subsequently arose between Plaintiff and Defendant as to the ownership of the company. Plaintiff produced Lighthouse Entertainment corporate tax returns from 2001 to 2008 listing Plaintiff and Defendant as joint owners, but the corporate records reflected no stock certificates assigned to Plaintiff.
On 8 March 2010, Plaintiff filed a complaint against Defendant, Lighthouse Entertainment, Marketplace Cinemas, Plantation Realty Company, LLC ("Plantation Realty"), Deepak Pasi, Joel T. Cheatham, III, Cole Whitt, Donald Seifert, and Clem Seifert (collectively, the "Defendants"). Defendants Plantation Realty, Deepak Pasi, Joel T. Cheatham, III, Cole Whitt, Donald Seifert, and Clem Seifert collectively are the other members of Marketplace Cinemas.
Plaintiff alleged that Defendant was liable for breach of contract, unfair and deceptive trade practices, fraud, constructive fraud, conversion, and unjust enrichment. Plaintiff also sought declaratory judgment against all Defendants prohibiting them from denying or disturbing a transfer of ownership interest in Marketplace Cinemas should the trial court order such a transfer.
A trial was commenced in Vance County Superior Court during the 11 April 2011 Civil Session. During the charge conference the parties debated how the instructions would resolve the following legal issues: (1) "Would Plaintiff be able to recover damages for express contract and unjust enrichment?"; (2) "Would the judge request Plaintiff to elect her remedies upon return of the verdict?"; and (3) "Should the jury be instructed that if it reached a verdict finding an express contract that it should not render a verdict on the issue of unjust enrichment?." The trial judge, after argument from counsel, elected to instruct the jury as follows:
Members of the jury, you have previously been asked to consider damages independently, that is, damages as they relate to each claim that you found the
plaintiff had proven. However, you may not award damages more than once for the same conduct. Therefore, [on the issue of total amount of damages awarded], if you have awarded damages on any issue above, you are to list the total damages, but may not count damages twice.
So I instruct you that if you have awarded damages to the plaintiff on any of the above issues, pursuant to the instructions previously given, you are to total the damages and place that number on the blank space provided, but only after subtracting any award listed above that would lead to awarding damages more than once for the same conduct.
After the presentation of all the evidence, the jury returned the following verdict:
1. Did the plaintiff and the defendant enter into a contract?On 26 April 2012, the trial court entered judgment for Plaintiff in the amount of $197,195.00 with interest accruing from 13 April 2011. The judge entered a judgment containing the following language: "As her final claim for relief, Plaintiff requested a declaratory judgment, which issue was not decided by the jury or the judge at the trial of this matter." Defendant provided timely notice of appeal.
ANSWER: Yes
2. Did the defendant breach the contract?
ANSWER: Yes
3. What amount is the plaintiff entitled to recover from the defendant for breach of contract?
ANSWER: $10,000.00
4. Was the plaintiff damaged by the fraud of the defendant?
ANSWER: Yes
5. What amount is the plaintiff entitled to recover from the defendant as damages of fraud?
ANSWER: $0.00
6. What amount of punitive damages, if any, does the jury in its discretion award to the plaintiff?
AWARD: $10,000.00
7. Did the defendant take advantage of a position of trust and confidence to bring about plaintiff's willingness to work without pay or to repay debts owed by company?
ANSWER: Yes
8. What amount is the plaintiff entitled to recover from the defendant as damages for constructive fraud?
Amount: $5,195.00
9. Did plaintiff work without pay or repay debts of the company under such circumstances that defendant should be required to pay for them?
ANSWER: Yes
10. What amount is plaintiff entitled to recover from defendant for unjust enrichment?
ANSWER: $172,000.00
11. What is the total amount of damages awarded, if any?
Answer: $197,195.00
II. Jurisdiction
"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990); see also State v. Henry, 318 N.C. 408, 409, 348 S.E.2d 593, 593 (1986) ("There is no provision for appeal to the Court of Appeals as a matter of right from an interlocutory order entered in a criminal case."). The North Carolina Court of Appeals may hear appeals of interlocutory orders or judgments from a civil proceeding of a superior court or district court if the order or judgment: "(1) [a]ffects a substantial right, or (2) [i]n effect determines the action and prevents a judgment from which appeal might be taken, or (3) [d]iscontinues the action, or (4) [g]rants or refuses a new trial . . . ." N.C. Gen. Stat. § 7A-27(d) (2011).
III. Analysis
On appeal, Defendant makes two arguments: (i) the trial court erred by failing to intervene when Plaintiff's counsel attempted to circumvent a court order excluding evidence; and (ii) the trial court erred by allowing the jury to award damages for both breach of contract and quantum meruit under a theory of a contract implied-in-law. Because we find Defendant's appeal to be interlocutory, we dismiss the appeal.
"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).
The appellant bears the burden of stating "in its statement of grounds for appellate review '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 (quoting N.C. R. App. P. 28(b)(4)), aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).
In the present case, Defendant's brief grounds his appeal as a claim for relief from final judgment pursuant to N.C. Gen. Stat. § 7A-27(b) (2011). However, the trial court's judgment did not adjudicate all of Plaintiff's claims. Specifically, the trial court's 25 April 2011 judgment states "[a]s her final claim for relief, Plaintiff requested a declaratory judgment, which issue was not decided by the jury or the judge at the trial of this matter." Nothing in the record indicates the trial court subsequently reached a decision regarding Plaintiff's claim for declaratory judgment. Thus, the trial court's judgment is not final, but rather interlocutory. See Veazey, 231 N.C. at 361, 57 S.E.2d at 381.
Consequently, we dismiss Defendant's claims.
IV. Conclusion
Because the trial court did not decide all of Plaintiff's claims, we dismiss Defendant's appeal as interlocutory. Jurisdiction remains in the trial court to complete the necessary conclusions of this case; to declare the rights of the parties, or to require Plaintiff to elect remedies; or to take such other action which the trial court concludes is necessary to render a final judgment.
Dismissed.
Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).