American Dental Services, Inc. v. Fulp

WEBB, Judge. At the outset we note that the order for summary judgment was partial. It did not dispose of all claims and this appeal is subject to dismissal. See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). In our discretion, we treat the appeal as a petition for certiorari and allow it. The parties in their briefs argue at length as to whether King’s Department Stores, Inc. and the plaintiff are engaged in the practice of dentistry by performing under the lease and [594] sublease, and whether this is in violation of public policy which makes the sublease between the plaintiff and defendant void. We do not consider this argument because we do not believe it is necessary for a determination of the case. The defendant takes the position that the lease is void. It filed a letter, attached to an affidavit, from its attorney to the plaintiff, stating the lease was terminated and would not be honored by the defendant. In light of these undisputed facts, we believe the plaintiff had the right to declare the lease in default, which it did, and evict the defendant. We believe that by proving that the defendant has entered the premises under a lease with the plaintiff, which lease is now terminated, the plaintiff is entitled to be put in possession of the property. Ford v. Moulding Co., 231 N.C. 105, 56 S.E. 2d 14 (1949). The defendant argues that the plaintiffs lease with King’s Department Stores, Inc. is void as being against public policy, and the plaintiff does not have any title to the property. We do not reach the question of the lease between King’s and the plaintiff. King’s is not a party to this action. The plaintiff is holding under a lease from King’s Department Stores, Inc. without any indication in the record that either party to the lease contests it. We hold this is sufficient to prove the plaintiffs title to the premises. We reverse and remand for the entry of a judgment putting the plaintiff in possession of the premises. The defendant’s counterclaim is left for trial. Reversed and remanded. Judges Hedrick and Becton concur.