BLUE RIDGE SPORTCYCLE CO., INC. v. Schroader , 53 N.C. App. 354 ( 1981 )

280 S.E.2d 799 (1981)

BLUE RIDGE SPORTCYCLE COMPANY, INC., and John K. Jonas, Jr.
v.
Leonard SCHROADER and wife, Kathy Schroader, individually; Schroader Motorcycle, Inc. d/b/a Schroader Honda-Kawasaki; Katherine J. Waldrop; Linda Janette Holcombe; Larry D. Holcombe; and Dennis J. Winner.

No. 8028SC1122.

Court of Appeals of North Carolina.

August 4, 1981.

Russell L. McLean, III, Waynesville, for plaintiffs-appellants.

Morris, Golding, Blue & Phillips by William C. Morris, Jr., Asheville, for defendant-appellee, Winner.

CLARK, Judge.

The threshold question before this Court, though not argued by either party, is whether an appeal lies from the summary judgment for the defendant Winner. It is established that if an appealing party has no right of appeal, an appellate court on its own motion, should dismiss the appeal even though the question of appealability has not been raised by the parties themselves. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980); Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956).

In a multiple claim or multiple party action, an appeal from a summary judgment granted for one party or on one claim is premature if the trial court does not make a determination under G.S. 1A-1, Rule 54(b) that there was no just reason for delay, unless a substantial right is involved as provided by G.S. 1-277 and G.S. 7A-27(d). Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976).

Since the trial court made no finding under Rule 54(b) that there was no just reason for delay, we must determine if plaintiffs had the statutory right of appeal under G.S. 1-277 and G.S. 7A-27(d) because a substantial right is involved. We conclude that there is no substantial right involved and that the appeal is premature.

In their first two claims for relief, plaintiffs allege that defendants Schroader, lessees, agreed to pay plaintiffs for their leasehold improvements, and that the release was executed and delivered to defendants Holcombe and Waldrop, lessors, without the knowledge and consent of plaintiffs, and that said defendants relying on said release fraudulently entered into a direct sublease with defendants Schroader with intent to defraud the plaintiffs. The third claim for relief against defendant Winner for malpractice was in the alternative, "if and in the event the Court should find that the plaintiffs should not recover and shall not recover under its claims for relief set forth under One and Two above ...."

Since plaintiffs seek to recover against defendant Winner only if they are unable to recover against the other defendants on their primary claims, the primary claims must first be determined. Only if the court determines that plaintiffs cannot recover on their primary claims can plaintiffs' right to recover from defendant Winner be affected by the summary judgment for Winner. If the plaintiffs should recover against the other defendants on either one or both of the primary claims, plaintiffs under the pleadings could not and do not seek to recover against defendant Winner for malpractice.

The summary judgment is not appealable on the theory that it affects a substantial right of the plaintiffs and will work injury to plaintiffs if not corrected before a trial and appeal from final judgment on the primary claims. If the summary judgment for defendant Winner is in error, plaintiffs can preserve their right to complain of the error by a duly entered exception, and may appeal after adverse judgment on the primary claims. If plaintiffs should recover against the other defendants on their primary claims, there would be no basis for an appeal from the summary judgment against defendant Winner; if plaintiffs do not recover on their primary claims, they may then appeal from the summary judgment. See Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979).

The courts do not favor a piecemeal appeal in a Rule 54(b) situation. See W. Shuford, N.C. Civil Practice and Procedure § 54-5 (1975). But the appeal from the summary judgment in this case is also objectionable in that, though on its face a final judgment, it is actually a conditional one that would adversely affect the plaintiffs only if and when it is determined that they cannot recover on their primary claims. At this stage of the proceeding the appeal is premature, and this Court, if it now entertained the appeal, would be giving an advisory opinion on a matter that will not be in controversy if subsequently plaintiffs do recover on their primary claims. The summary judgment is not final but interlocutory because further judicial action is necessary in order fully and finally to settle the rights of the parties. An order is interlocutory "if it does not determine the issues but directs some further proceeding preliminary to final decree." Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961).

The appeal from the summary judgment is in violation of G.S. 1-277 and G.S. 7A-27 which prohibits appeal from an interlocutory order and also in violation of G.S. 1A-1, Rule 54(b) which prohibits appeal from a judgment which adjudicates fewer than all of multiple claims, it appearing that plaintiffs are not now deprived of a substantial right. The reason for these statutes and rules is "to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division." Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).

The appeal is

Dismissed.

ROBERT M. MARTIN and WELLS, JJ., concur.