Falcone v. Juda

VAUGHN, Chief Judge. The order, which granted summary judgment on plaintiffs’ claim, is not a final judgment, but is interlocutory, as defendants’ counterclaims remain to be adjudicated. Although an appeal does not customarily lie from an interlocutory order, an exception is made if such order deprives the appellant of a substantial right which will be lost if the ruling is not reviewed before final judgment. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978). In other words, immediate appeal from nonfinal orders is reserved for cases in which normal procedural channels are inadequate to protect the substantial right affected. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E. 2d 777 (1983). Appealability of a particular order is usually resolved by [792] considering the facts of that case and the procedural context in which the order was entered. Id. We do not decide whether the appeal lies as a matter of right. We instead treat the appeal as a petition for certiorari, allow it, and consider the matter on its merits. Summary judgment is granted if the pleadings, together with supporting materials, “show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Rule 56(c), N.C. Rules Civ. Proc. See generally, Shuford, North Carolina Civil Practice and Procedure § 56-7 (2d ed. 1981). Defendants attempt to locate a genuine issue of material fact in three separate areas: whether plaintiffs have title to the land, whether defendants defaulted under the contract for deed, and whether defendants have an equitable lien against the land in question. We find each of defendants’ arguments unpersuasive and therefore affirm. First, title is not at issue here. The issue is whether the notice of purchaser’s interest should be cancelled. The contract of deed provides that upon defendants’ default, the defendants shall forfeit and the plaintiffs shall be reinvested with title to the property. The cancellation of the notice, crucial to plaintiffs’ resumption of title, is not in any way dependent on the validity of plaintiffs’ title. Rather, reinvestment with title is a matter of contract between the parties, triggered by defendants’ default under the contract. Second, there is no question but that defendants defaulted under the contract. The contract provides that upon the failure of the defendants to pay the principal or interest, the plaintiffs are to be reinvested with title. In defendants’ verified answer, they explicitly state that the contract was “terminated,” that they discontinued their monthly payments to the plaintiffs after having made only ten of them, and that they attempted to secure alternate financing to pay the principal balance, but were unable to do so prior to 1 July 1982. Defendants’ own admissions, then, establish a default under the contract of sale. Defendants’ final argument is that summary judgment was inappropriately granted because there remains a question of fact whether their counterclaim for money damages creates an equitable lien against the property in dispute. Our examination of [793] the record satisfies us that the materials presented upon the motion for summary judgment do not give rise to a triable issue of fact as to the existence of an equitable lien. An equitable lien is not an estate in land, but is an equitable encumbrance upon land, “a charge upon the property, which charge subjects the property to the payment of the debt of the creditor in whose favor the charge exists.” Fulp v. Fulp, 264 N.C. 20, 24, 140 S.E. 2d 708, 712 (1965). Such liens may be created by express contract or arise by implication. They most frequently arise by implication when one person has wrongfully expended another person’s funds for improvements to the former’s property, although the remedy is not limited to those cases. Id. The Supreme Court in Fulp noted that the remedy of an equitable lien “is not a necessary incident to the action for money had and received but results only when there are factors invoking equity, here the confidential relationship.” Id. at 25, 140 S.E. 2d at 713. Accord, Richardson v. Carolina Bank, 59 N.C. App. 494, 297 S.E. 2d 197 (1982); Parslow v. Parslow, 47 N.C. App. 84, 266 S.E. 2d 746 (1980); 51 Am. Jur. 2d Liens § 24 (1970) (apply doctrine only in cases where the law fails to give relief and justice would suffer without it). It is obvious, therefore, that defendants have no grounds on which to base the existence of an equitable lien. No express contract creates a lien, and no special factors such as a confidential relationship justify a lien by implication. Affirmed. Judges WEBB and HILL concur.