Opinion
No. COA16-246
12-06-2016
TURNIP INVESTMENTS, LLC, Plaintiff v. DEUTSCHE BANK TRUST COMPANY AMERICAS, SUBSIDIARY OF DEUTSCHE TRUST CORPORATION, f/k/a BANKERS TRUST COMPANY, individually and as trustee for RAMP 2004-SL4; GMAC MORTGAGE, LLC; GRADY I. INGLE, Substitute Trustee; and ELIZABETH B. ELLS, Substitute Trustee, Defendants
Clontz & Clontz, PLLC, by Ralph C. Clontz, III, for plaintiff-appellant. Bradley Arant Boult Cummings LLP, by G. Benjamin Milam and Mark S. Wierman, for defendant-appellee Deutsche Bank Trust Company Americas as trustee for RAMP 2004-SL4.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Jackson County, No. 15 CVS 227 Appeal by plaintiff from order entered 20 July 2015 by Judge Gary M. Gavenus in Jackson County Superior Court. Heard in the Court of Appeals 21 September 2016. Clontz & Clontz, PLLC, by Ralph C. Clontz, III, for plaintiff-appellant. Bradley Arant Boult Cummings LLP, by G. Benjamin Milam and Mark S. Wierman, for defendant-appellee Deutsche Bank Trust Company Americas as trustee for RAMP 2004-SL4. CALABRIA, Judge.
Turnip Investments, LLC ("plaintiff") appeals from an order denying its motion for a preliminary injunction. We dismiss the appeal as interlocutory.
On 20 October 1998, Stephen F. Clouse and Gloria J. Clouse ("the Clouses") executed a deed of trust to 851 Spruce Flats Road, Maggie Valley, North Carolina ("the property") in favor of Homecomings Financial Network, Inc. ("Homecomings") as beneficiary. This deed of trust secured a note, payable to Homecomings, which was then endorsed to Residential Funding Corporation ("Residential"). Subsequently, Deutsche Bank Trust Company Americas ("defendant"), through its attorney-in-fact Residential, executed multiple allonges to the note, and the note was then assigned to defendant. On 22 June 2012, plaintiff purchased the Clouses' equity interest in the property with the intent of paying the outstanding balance of the note.
The Clouses defaulted on their obligations under the note and deed of trust and in March 2012, foreclosure proceedings were instituted against the property. Following a foreclosure hearing on 29 January 2013, the Clerk of Court of Jackson County entered an Order Permitting Foreclosure. Plaintiff appealed to the Superior Court of Jackson County, which conducted a de novo proceeding on 16 September 2013. Subsequently, the Superior Court issued an Order Denying Appeal and Permitting Foreclosure. Plaintiff appealed the Superior Court's Order to this Court, and the matter was heard on 13 August 2014. In re Clouse, 237 N.C. App. 616, 767 S.E.2d 704 (2014) (unpublished). This Court concluded that the trial court had performed a proper de novo hearing, and affirmed the ruling of the Superior Court. Id.
On 20 April 2015 plaintiff filed a complaint seeking, inter alia, a temporary restraining order, and a preliminary and permanent injunction. On 21 April 2015, plaintiff obtained a temporary restraining order enjoining the foreclosure sale that had already been consummated on 20 April 2015. On 20 July 2015, the trial court entered a written order denying plaintiff's motion for a preliminary injunction.
Plaintiff appeals.
On appeal, plaintiff contends that the trial court erred in denying plaintiff's motion for preliminary injunction.
A preliminary injunction is interlocutory in nature. As a result, issuance of a preliminary injunction cannot be appealed prior to final judgment absent a showing that the appellant has been deprived of a substantial right which will be lost should the order escape appellate review before final judgment.Clark v. Craven Reg'l Med. Auth., 326 N.C. 15, 23, 387 S.E.2d 168, 173 (1990) (citations and quotations omitted).
"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).
[I]mmediate appeal of interlocutory orders and judgments 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 there is no just reason for delay. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (citations and quotations omitted).
We must first address whether this order is appealable. Generally speaking, an interlocutory order is appealable only where the matter is properly certified for appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, or where the appellant asserts the existence of a substantial right that would be impacted by delay. Sharpe, 351 N.C. at 161-62, 522 S.E.2d at 579. In the instant case, the trial court has not certified this matter for appeal pursuant to Rule 54(b). The only argument plaintiff raises is that of a substantial right. Therefore, in reviewing the interlocutory nature of this appeal, we will only address the substantial right exception.
"[W]hen an appeal is interlocutory, the appellant must include 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). "The appellants must present more than a bare assertion that the order affects a substantial right; they must demonstrate why the order affects a substantial right." Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009). Our Supreme Court has stated that, with respect to appeals pursuant to the substantial right exception, "[e]ssentially a two-part test has developed - the right itself must be substantial and the deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment." Goldston, 326 N.C. at 726, 392 S.E.2d at 736.
In the instant case, plaintiff correctly notes that "N.C. Gen. Stat. § 7A-27(b)(3)(a) provides that appeal lies of right directly to the Court of Appeals from any interlocutory order or judgment of a superior court or district court in a civil action or proceeding that . . . [a]ffects a substantial right." Plaintiff concedes that the order denying its motion for preliminary injunction is interlocutory, but contends, without offering further argument, that it "deprives Turnip of a substantial right[.]" As we have already indicated, a bare assertion that an order affects a substantial right without providing why or how that right is affected is insufficient. Plaintiff fails to explain what substantial right is affected and, subsequently, the potential injury as a result of the deprivation of that right. Therefore, we dismiss plaintiff's appeal as interlocutory.
DISMISSED.
Judges DAVIS and TYSON concur.
Report per Rule 30(e).