Bacon v. Leatherwood

MORRIS, Chief Judge. The right of an appellant to appeal a decree of a trial court is circumscribed by G.S. 1A-1, Rule 54(b) which provides: (b) Judgment upon multiple claims or involving multiple parties.— When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court [590] may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. However, G.S. 1A-1, Rule 54(b) does not limit an appellant’s right to appeal when the trial court’s decree is appealable under other statutory provisions, notably, G.S. 1-277 and G.S. 7A-27(d). Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979); Newton v. Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976); Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976). In brief, these statutes allow the immediate appeal of an interlocutory judicial determination if the judicial determination which is the subject of the appeal affects a substantial right claimed in the action or proceeding; or in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action; or grants or refuses a new trial. An interlocutory order was aptly defined by Justice Ervin, as, “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. Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E. 2d 377, 381 (1950). In the instant case the order of the trial court from which plaintiff appeals was interlocutory. Plaintiffs sued two parties, the husband and wife. Under G.S. 1A-1, Rule 54(b) the trial court may enter a final judgment as to one of those parties but not the other, and that judgment will not [591] be immediately appealable unless the trial court so specifies. In the trial court’s order of 18 June 1980 dismissing plaintiffs action insofar as it applied to Robert Leatherwood the court gave no indication that there was “no just reason for delay.” Therefore, under G.S. 1A-1, Rule 54(b) this appeal is interlocutory and premature. Nor does plaintiff’s case fall within the exceptions of G.S. 1-277 or G.S. 7A-27(d). We are unaware of, and plaintiff has not indicated, how the trial court’s order has affected any “substantial right” of plaintiff’s or how the order could have in effect determined this action, prevented a judgment from which an appeal might be taken, discontinued the action, or granted or refused a new trial. Plaintiff, in her complaint, asked the court for a declaratory judgment with regard to the marketability of the property under the deed which defendant, Robert Leatherwood, had tendered her. Insofar as her action involves this request for a declaratory judgment it does not directly implicate or affect either of defendants. Plaintiff’s action, insofar as it pertains to defendant Robert Leatherwood, is based upon his alleged violation of the terms of the 18 June 1976 judgment by which plaintiff and Robert Leather-wood were divorced. She claims his failure to deliver to her a warranty deed free from exception conveying their former home, she having tendered to him the established purchase price of the home, violated the terms of that judgment. In comparison, plaintiff’s action insofar as it pertains to the feme defendant is based upon that defendant’s failure to sign the deed to the property despite the fact that she signed the contract to sell the property to plaintiff for $27,000. In addition, plaintiff’s complaint alleges that Maggie Leatherwood contrived with her husband in a willful attempt to harass plaintiff and cause her additional expenses by not joining in the deed. Thus, plaintiff’s action is not of such a nature that the court’s dismissal of the male defendant affects the “substantial rights” of plaintiff or causes the occurrence of the other contingencies specified in the statutes. Plaintiff can continue with her action against defendant, Maggie Leatherwood. In addition, plaintiff’s rights are fully and adequately protected by her exception to the trial court’s order of dismissal of defendant, [592] Robert Leatherwood, which she may assign as error should final judgment go against her. For these reasons we think that plaintiffs appeal was interlocutory. Consequently, her appeal is Dismissed. Judges MARTIN (Robert M.) and WHICHARD concur.