Moon Wright & Houston , 253 N.C. App. 113 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1046
Filed: 18 April 2017
Mecklenburg County, No. 15 CVS 16169
MOON WRIGHT & HOUSTON, PLLC, Plaintiff,
v.
CHARLES J. COLE and SANDRA D. COLE, Defendants.
Appeal by plaintiff from order entered 17 June 2016 by Judge Richard D. Boner
in Mecklenburg County Superior Court. Heard in the Court of Appeals 23 March
2017.
Moon Wright & Houston, PLLC, by Caleb Brown, Richard S. Wright, and
Andrew T. Houston, for plaintiff-appellant.
Copeland Richards, PLLC, by Drew A. Richards, for defendant-appellee
Charles J. Cole.
MURPHY, Judge.
Moon Wright & Houston, PLLC (“Plaintiff”), appeals from the trial court’s
order partially granting Sandra and Charles Cole’s (collectively “Defendants”) motion
for summary judgment. After careful review, we dismiss Plaintiff’s appeal as
interlocutory.
Factual Background
On 27 August 2015, Plaintiff, a law firm operating out of Charlotte, North
Carolina, filed a complaint in Mecklenburg County Superior Court against Sandra
MOON WRIGHT & HOUSTON, PLLC V. COLE
Opinion of the Court
Cole (“Sandra”) and Charles Cole (“Charles”) concerning their failure to pay certain
legal fees owed to Plaintiff. In its complaint, Plaintiff alleged (1) a breach of contract
claim against Sandra; (2) a claim for unjust enrichment and quantum meruit against
both Sandra and Charles; (3) a violation of the doctrine of necessities against Charles;
(4) a fraud claim against Charles; and (5) a claim for negligent misrepresentation
against both Sandra and Charles.
On 12 May 2016, Defendants filed a motion for summary judgment as to
Plaintiff’s claims. On 25 May 2016, Sandra filed for bankruptcy in the United States
Bankruptcy Court for the Western District of North Carolina under Chapter 13 of the
United States Bankruptcy Code.1 As a result of her filing, the automatic stay
provided pursuant to 11 U.S.C. § 362 was triggered.
A hearing on Defendants’ motion was held before the Honorable Richard D.
Boner in Mecklenburg County Superior Court on 8 June 2016. On 17 June 2016,
Judge Boner entered an order granting summary judgment in Charles’ favor. The
order did not address Plaintiff’s claims against Sandra. Plaintiff filed a notice of
appeal of the trial court’s summary judgment order on 15 July 2016.
Analysis
As an initial matter, we note that the present appeal is interlocutory. “Since
summary judgment was allowed for fewer than all the defendants and the judgment
1 Charles Cole did not file for bankruptcy.
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did not contain a certification pursuant to G.S. § 1A-1, Rule 54(b), that there was ‘no
just reason for delay,’ plaintiff’s appeal is premature unless the order allowing
summary judgment affected a substantial right.” Bernick v. Jurden, 306 N.C. 435,
438, 293 S.E.2d 405, 408 (1982). Although not raised by either party on appeal,
“whether an appeal is interlocutory presents a jurisdictional issue, and this Court has
an obligation to address the issue sua sponte.” Duval v. OM Hospitality, LLC, 186
N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, internal quotation marks,
and brackets omitted). “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.” Id. (citation omitted). Conversely, an order or judgment is interlocutory if it
does not settle all of the issues in the case but rather “directs some further proceeding
preliminary to the final decree.” Heavner v. Heavner, 73 N.C. App. 331,
332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C. 601, 330 S.E.2d 610 (1985).
Generally, there is no right of immediate appeal from an
interlocutory order. The prohibition against appeals from
interlocutory orders prevents fragmentary, premature and
unnecessary appeals by permitting the trial court to bring
the case to final judgment before it is presented to the
appellate courts. However, there are two avenues by which
a party may immediately appeal an interlocutory order or
judgment. First, if the order or judgment is final as to some
but not all of the claims or parties, and the trial court
certifies the case for appeal pursuant to N.C. Gen. Stat. §
1A-1, Rule 54(b), an immediate appeal will lie. Second, an
appeal is permitted under N.C. Gen. Stat. §§ 1-277(a) and
7A-27(d)(1) if the trial court’s decision deprives the
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appellant of a substantial right which would be lost absent
immediate review.
Feltman v. City of Wilson, 238 N.C. App. 246, 250, 767 S.E.2d 615, 618-19 (2014)
(internal citations and quotation marks omitted).
In the present case, it is readily apparent that the trial court’s summary
judgment order only resolved Plaintiff’s claims against Charles, and not Plaintiff’s
claims against Sandra:
This matter coming on for hearing before the
undersigned judge at the June 8, 2016 Civil Session of the
Superior Court in Mecklenburg County, North Carolina
upon motion by Defendant Charles J. Cole for Summary
Judgment regarding all of Plaintiff’s claims against
Defendant Charles J. Cole.
After reviewing the pleadings, affidavits, briefs and
the court file in this matter, and hearing the arguments of
counsel, the Court concludes as a matter of law that there
are no genuine issues of material fact such that Defendant
Charles J. Cole’s Motion for Summary Judgment should be
and is hereby GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED that summary judgment is granted in
favor of Defendant Charles J. Cole and Plaintiff’s
Complaint against Defendant Charles J. Cole is hereby
dismissed with prejudice.
(Emphasis added). [R. p. 375]
Nowhere in the trial court’s order are Plaintiff’s claims against Sandra
resolved, or even, for that matter, addressed. Furthermore, the record on appeal is
devoid of any documentation tending to show that Plaintiff’s claims against Sandra
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have either been subsequently determined by the trial court, discharged in
bankruptcy, or voluntarily dismissed by Plaintiff. We note that while Plaintiff
complied with Local Rule 19 of the 26th Judicial District Superior Court Division
Local Rules and Procedures insofar as it filed a notice of Sandra’s bankruptcy filing
with the Clerk of Superior Court, Local Rule 19 does nothing more than
administratively close the case against Sandra and hold it in abeyance. See Local
Rule 19.3 (“Upon submission of paperwork, as described above, the Clerk of Superior
Court shall administratively close the case, but only as to the claims against the party
in bankruptcy.”). Jurisdiction over Plaintiff’s claims against Sandra remains with
the trial court pending resolution of Sandra’s bankruptcy case or a dismissal of the
claims against her.
Plaintiff has made no argument on appeal that the trial court’s order impacts
a substantial right which would be lost absent immediate appellate review. Nor has
the trial court certified its summary judgment order for immediate appeal pursuant
to Rule 54(b) of the North Carolina Rules of Civil Procedure. Consequently, because
Plaintiff’s claims against Sandra remain outstanding, we dismiss the present appeal
as interlocutory.
Conclusion
For the reasons stated above, Plaintiff’s interlocutory appeal is dismissed.
DISMISSED.
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Opinion of the Court
Judges STROUD and DILLON concur.
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