Newbridge Bank v. R.C. Koonts & Sons Masonry, Inc. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute
    controlling legal authority. Citation is disfavored, but may be permitted in accordance
    with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
    NO. COA14-13
    NORTH CAROLINA COURT OF APPEALS
    Filed: 17 June 2014
    NEWBRIDGE BANK (formerly LEXINGTON
    STATE BANK),
    Plaintiff,
    v.                                      Davidson County
    No. 09 CVS 184
    R.C. KOONTS and SONS MASONRY,
    INC., DAVID CRAIG KOONTS, ROY
    CLIFTON KOONTS, III, AND EDITH L.
    KOONTS,
    Defendants.
    Appeal by defendants from orders entered 26 October 2012
    and 2 July 2013 by Judge Theodore S. Royster, Jr. in Davidson
    County Superior Court.            Heard in the Court of Appeals 6 May
    2014.
    BIESECKER, TRIPP, SINK & FRITTS, L.L.P., by Roger S. Tripp,
    for plaintiff.
    Stephen E. Lawing for defendants.
    ELMORE, Judge.
    R.C. Koonts and Sons Masonry, Inc., David Craig Koonts, Roy
    Clifton     Koonts,     III,     and    Edith     L.    Koonts     (collectively
    defendants) appeal the 26 October 2012 order granting partial
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    summary     judgment    in   favor     of     Newbridge         Bank    (plaintiff),
    formerly Lexington State Bank (LSB), and the 2 July 2013 order
    denying defendants’ motion for relief from judgment.                        For the
    reasons stated below, we dismiss.
    I.      Background
    A brief summary of the relevant facts in the instant case
    are   as   follows:      R.C.    Koonts      and   Sons    Masonry,       Inc.   (the
    corporate defendant) executed a promissory note on 22 November
    2004 (the 2004 Note) in favor of LSB for Loan No. 1203499-9015.
    The principal amount of the loan was $417,306.14.                      The 2004 Note
    consolidated      the        corporate         defendant’s             then-existing
    indebtedness,    including      but    not   limited      to,    the    indebtedness
    under a previous promissory note executed 22 April 2002 by the
    corporate defendant in favor of LSB.                The 2004 Note listed a
    maturity date of 2 June 2005.            However, the corporate defendant
    extended the maturity of the 2004 Note to 2 August 2010 when it
    executed a subsequent promissory note on 27 July 2005 (the 2005
    Note).     The July 2005 Note specified that it was a renewal, not
    a satisfaction, of Loan No. 1203499-9015.
    Defendants ceased making payments on the July 2005 Note in
    May 2008.     Accordingly, plaintiff declared the remaining balance
    on the 2005 Note of $396,257.72 immediately due and payable.
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    The record discloses that one or more of the defendants possibly
    entered    into      a    Commercial         Security        Agreement     granting        LSB    a
    security       interest        in    a    1997     Trail     King   Trailer         and   certain
    inventory, accounts receivable, machinery, and equipment.                                    These
    items     were      allegedly            pledged    as      collateral     to       secure      the
    corporate       defendant’s          indebtedness,          whether      then       existing     or
    thereafter arising.                It is further alleged that plaintiff did in
    fact seize certain assets to secure the loan balance.
    On     5     October       2012,       the     parties      filed    cross-motions          for
    summary    judgment           in    Davidson       County     Superior     Court.          On    26
    October     2012,        the       trial     court       entered    an    order       partially
    granting summary judgment in favor of plaintiff, finding that
    defendants were jointly and severally liable on the 2004 Note,
    renewed by the 2005 Note.                   The trial court also found that there
    was a genuine issue of material fact as to the amount of damages
    owed by each defendant to plaintiff.                         In that same judgment, the
    trial   court       denied         defendants’         motion     for    summary      judgment,
    which was premised on defendants’ argument that there was no
    genuine    issue         of    material      fact      as    to   defendants’         claim     for
    damages for the deterioration and detention of certain seized
    assets.        On   7     November         2012,    defendants      filed       a    motion     for
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    relief from the trial court’s 26 October 2012 order.                          The trial
    court denied defendants’ motion in an order filed 2 July 2013.
    Defendants    appeal     the     26     October       2012     order       granting
    partial summary judgment in favor of plaintiff and the 2 July
    2013   order    denying    their      motion     for       relief     from    judgment.
    Pursuant to Rule 54(b) of the North Carolina Rules of Civil
    Procedure, the trial court certified both orders for immediate
    appellate review, i.e., it found that there was no just reason
    for delay of the entry of a final judgment.                       On 14 March 2014,
    plaintiff moved to dismiss defendants’ appeal on grounds that
    the orders from which defendants appeal are interlocutory and
    therefore      not   subject    to     immediate       review        by    this    Court.
    Alternatively,       defendants       argue    that        they     are    entitled     to
    appellate review based solely on the fact that the trial court
    certified its orders pursuant to Rule 54(b).
    “An interlocutory order is 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.”                   Tridyn Indus., Inc. v. Am.
    Mut. Ins. Co., 
    296 N.C. 486
    , 488, 
    251 S.E.2d 443
    , 445 (1979)
    (quotation and citation omitted.)               “[A]n interlocutory order can
    be immediately appealed if the order is final as to some but not
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    all of the claims . . . and the trial court certifies there is
    no just reason to delay the appeal [pursuant to North Carolina
    Rules of Civil Procedure, Rule 54(b)].”              Tands, Inc. v. Coastal
    Plains Realty, Inc., 
    201 N.C. App. 139
    , 142, 
    686 S.E.2d 164
    , 166
    (2009) (citations and internal quotation marks omitted).                      Our
    Supreme     Court   has     explained    that     “[w]hen    the    trial   court
    certifies    its    order    for   immediate     appeal     under   Rule    54(b),
    appellate review is mandatory.”               Id. at 142, 
    686 S.E.2d at 166
    (2009) (citation and quotation omitted).               However, our Supreme
    Court further clarified that, while we afford great deference to
    a trial court’s certification pursuant to Rule 54(b), “the trial
    court may not, by certification, render its decree immediately
    appealable if [it] is not a final judgment.”                   Id. at 142, 
    686 S.E.2d at 166-67
     (citation and quotation omitted).
    Notwithstanding   this  cardinal   tenet  of
    appellate practice, immediate appeal of
    interlocutory   orders   and  judgments   is
    available in at least two instances. First,
    immediate review is available when the trial
    court enters a final judgment as to one or
    more, but fewer than all, claims or parties
    and certifies there is no just reason for
    delay. N.C.G.S. § 1A-1, Rule 54(b) (1990);
    DKH Corp. v. Rankin-Patterson Oil Co., 
    348 N.C. 583
    , 585, 
    500 S.E.2d 666
    , 668 (1998);
    Oestreicher v. American Nat'l Stores, 
    290 N.C. 118
    , 121-22, 
    225 S.E.2d 797
    , 800
    (1976).   When the trial court certifies its
    order for immediate appeal under Rule 54(b),
    appellate review is mandatory.    DKH Corp.,
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    348 N.C. at 585, 
    500 S.E.2d at 668
    .
    Nonetheless, the trial court may not, by
    certification, render its decree immediately
    appealable   if  “[it]   is   not   a   final
    judgment.”   Lamb v. Wedgewood South Corp.,
    
    308 N.C. 419
    , 425, 
    302 S.E.2d 868
    , 871
    (1983); see Tridyn Indus. v. American Mut.
    Ins. Co., 
    296 N.C. 486
    , 491, 
    251 S.E.2d 443
    ,
    447 (1979) (“That the trial court declared
    it to be a final, declaratory judgment does
    not make it so.”). Second, immediate appeal
    is available from an interlocutory order or
    judgment   which   affects  a    “substantial
    right.” N.C.G.S. § 1-277(a) (1996); N.C.G.S.
    § 7A-27(d)(1) (1995); Bowden v. Latta, 
    337 N.C. 794
    , 796, 
    448 S.E.2d 503
    , 505 (1994);
    Oestreicher, 
    290 N.C. at 124
    , 
    225 S.E.2d at 802
    .
    Sharpe v. Worland, 
    351 N.C. 159
    , 161-62, 
    522 S.E.2d 577
    , 579
    (1999).    “A final judgment is one which disposes of the cause as
    to all the parties, leaving nothing to be judicially determined
    between them in the trial court.”              Veazey v. City of Durham, 
    231 N.C. 357
    , 361-62, 
    57 S.E.2d 377
    , 381 (1950).
    In     the    instant   case,   the   trial       court’s    partial    summary
    judgment order provides that defendants R.C. Koonts and Sons
    Masonry, Inc., Roy Clifton Koonts, III, and David Craig Koonts
    are jointly and severally liable to plaintiff on the issue of
    liability and “that this action shall be tried by a jury on the
    issue     of     the    amount   owed     by    the     [d]efendants        to     the
    [p]laintiff.”          Therefore,   defendants     appeal       from   a   grant   of
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    partial summary judgment which expressly settles the issue of
    liability but leaves the issue of the amount owed by defendants
    to    plaintiff    unresolved.         Neither    the   trial   court’s     partial
    summary judgment order nor Judge Royster’s order denying relief
    from partial summary judgment are final judgments.                         Instead,
    both    orders    are   interlocutory       and   not   subject    to     immediate
    appellate review.        See Steadman v. Steadman, 
    148 N.C. App. 713
    ,
    714, 
    559 S.E.2d 291
    , 292 (2002) (“It is well settled that a
    judgment which determines liability but which leaves unresolved
    the    amount    of   damages   is     interlocutory     and    cannot    affect   a
    substantial right.”); see also Tridyn Indus. at 492, 
    251 S.E.2d at 448
     (holding that a partial summary judgment order entered in
    favor of the plaintiff on the issue of liability, leaving for
    further    determination        only    the    issue    of     damages,    is   not
    immediately appealable by the defendant).
    Given that Judge Royster’s orders are not final judgments,
    the trial court’s certification of them pursuant to Rule 54(b)
    does not render them immediately appealable.                     In Tands, this
    Court dismissed the defendant’s appeal as interlocutory, despite
    the trial court’s certification for immediate review per Rule
    54(b), “because the issues of overage rent and the amount of
    plaintiff’s       potential     liability      (i.e.,    defendant’s       possible
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    damages award) remain[ed] unresolved[.]”      201 N.C. App. at 144,
    
    686 S.E.2d at 167
    .     As in Tands, defendants in the instant case
    have appealed from interlocutory orders which leave unresolved
    the issue of defendants’ potential liability (i.e. defendants’
    possible   damages   award).   Accordingly,   we   grant   plaintiff’s
    motion to dismiss defendants’ appeal as interlocutory.
    Dismissed.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).