Wagner v. R, J & S Associates

WELLS, Judge. At the outset we note that plaintiffs’ appeal from the court’s order granting partial summary judgment may be premature. See, e.g., Beam v. Morrow, Sec. of Human Resources, 77 N.C. App. 800, 336 S.E. 2d 106 (1985), disc. rev. denied, 316 N.C. 192, 341 S.E. 2d 575 (1986). However, in the exercise of our discretion, we consider the appeal on its merits. See Smith v. Watson, 71 N.C. App. 351, 322 S.E. 2d 588 (1984), disc. rev. denied, 313 N.C. 509, 329 S.E. 2d 394 (1985). The dispositive question for this appeal is whether the 23 July amendment to the Royal partnership agreement complies with the statutory requirements of N.C. Gen. Stat. § 59-25(a)(2) governing the amendment of limited partnership agreements. For the reasons set forth below, we hold that the 23 July amendment is invalid under G.S. § 59-25(a)(2). G.S. § 59-25(a)(2) provides that “[t]he writing to amend a certificate shall . . . [b]e signed and sworn to by all members. . . .” G.S. § 59-25(c) further provides that “[a] person desiring the . . . amendment of a certificate, if any person designated in [G.S. § 59-25(b)(2)] as a person who must execute the writing refuses to do so, may petition the superior court to direct . . . [an] amendment thereof.” It is undisputed that, as co-general partner, Wagner was a “member” of Royal Lane Apartments, Ltd. for purposes of G.S. § 59-25 and that the 23 July amendment was neither signed nor sworn to by him. This amendment thus fails to comply with the G.S. § 59-25(b)(2) requirement that it “[b]e signed and sworn to by all members . . . .” Accordingly, it is invalid. We note that, despite plaintiffs’ contention to the contrary, Wagner’s participation in the 22 May amendment was not necessary under G.S. § 59-25, since, under the express terms of original agreement to form the Royal partnership, Wagner, as general partner, gave R, J & S power of attorney “to make, execute, consent to, swear to, acknowledge, record and file any and all documents and amendments ... of this Agreement as might be required in order to cause [R, J & S] to be admitted into the Partnership as a Co-General Partner. . . .” [558] Accordingly, the judgment is reversed, and the cause is remanded for entry of a judgment in favor of plaintiffs declaring the 23 July amendment invalid. We note that defendants subsequently may attempt to execute a valid amendment removing Wagner as co-general partner by petitioning the superior court pursuant to G.S. § 59-25(c) in the event that Wagner refuses to sign and swear to such an amendment. Plaintiffs contend that the court erred in allowing defendants to include in the record on appeal certain discovery materials. Given our disposition of plaintiffs’ first argument, we do not reach this argument. Plaintiffs do not challenge on appeal the court’s granting of summary judgment dismissing plaintiffs’ claims for breach of contract and unfair and deceptive trade practices. We thus do not consider whether the court properly entered summary judgment as to these claims but simply affirm that portion of the summary judgment order dismissing plaintiffs’ claims for breach of contract and unfair and deceptive trade practices. We also affirm that portion of the trial court’s order dismissing plaintiffs’ claim for punitive damages without considering plaintiffs’ argument regarding this claim since it is raised for the first time in plaintiffs’ reply brief instead of their original brief as required by N.C.R. App. Proc. 28(a). In summary, the court’s order granting partial summary judgment is affirmed except for that portion of the order dismissing plaintiffs’ claim for declaratory relief regarding the validity of the 23 July amendment to the Royal partnership agreement. That portion of the court’s order dismissing this claim is reversed and remanded for entry of a judgment in favor of plaintiffs declaring the 23 July amendment invalid. Affirmed in part, reversed in part, and remanded. Judges Eagles and Greene concur.