Poore v. Swan Quarter Farms, Inc. , 57 N.C. App. 97 ( 1982 )

290 S.E.2d 799 (1982)

Fred H. POORE
v.
SWAN QUARTER FARMS, INC., and A. H. Van Dorp and wife, Mary H. Van Dorp.

No. 812SC526.

Court of Appeals of North Carolina.

May 4, 1982.

Samuel G. Grimes, Washington, for plaintiff-appellant.

McMullan & Knott by Lee E. Knott, Jr., Washington, for defendants-appellees.

MORRIS, Chief Judge.

Rule 12(a) of the Rules of Appellate Procedure requires that appellant file the record on appeal with the Clerk of this Court no later than 150 days after giving notice of appeal. Notice of appeal in this case was given on 21 November 1980, and the record was filed 180 days later on 20 May 1981. Defendants moved pursuant to Rule 25 to dismiss the appeal for failure to take action within the time allowed by the rules. No extension had been granted. The appeal is subject to dismissal. We choose to treat the appeal as a petition for a writ of certiorari, allow the writ and discuss the matter on its merits.

Plaintiff argues that the trial judge erred in finding that there was no genuine issue of material fact and that defendants were entitled to a judgment as a matter of law. He points out that the affidavits embrace conflicting facts, that his affidavit contains facts which, if true, constitute grounds for relief, and that the facts as presented by defendants do not entitle them to a judgment as a matter of law. The only material facts said to be in issue pertain to the allegation of fraud. Yet plaintiff by his motion of 1 August 1973 for the first time alleged fraud in the conveyance of corporate property to Mary H. Van Dorp. He thus raised a matter not addressed in the pleadings and therefore not adjudicated. We hold that the court's order of 18 May 1970 was a final determination of this case as circumscribed by the complaint, answer and counterclaim, and that Judge Brown properly granted summary judgment in favor of defendants.

Plaintiff contends that the order of 18 May 1970 was merely interlocutory because it specifically retained the cause for "such further orders as may be necessary to the proper determination of the rights of the parties." He argues that the order envisioned more than the possibility that the court would have to give effect to its instructions to hold meetings of the shareholders and directors, issue stock, and put the affairs of the corporation in order. Indeed, he urges upon us the view that the order was drawn to allow some future determination of the rights of the parties. We cannot subscribe to this notion in light of the fact that the issues raised were considered, and that plaintiff received by the order of 18 May all he prayed for in his complaint.

An interlocutory judgment 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; a final judgment is one which disposes of the cause as to all parties, leaving nothing to be judicially determined between them in the trial court. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950).

(Emphasis added.) Hinson v. Hinson, 17 N.C.App. 505, 508-509, 195 S.E.2d 98, 100 (1973).

An interlocutory order or judgment differs from a final judgment in that an interlocutory order or judgment is "subject to change by the court during the pendency of the action to meet the exigencies of the case" (citations).

Russ v. Woodward, 232 N.C. 36, 41, 59 S.E.2d 351, 355 (1950).

The order of 18 May 1970 put to rest the main purpose of the action and completely determined the rights of the parties. None of the questions raised was retained. "[T]here was nothing further to be done; there were no further questions or directions reserved for the future action of the court, ..." Flemming v. Roberts, 84 N.C. 532, 539 (1881). The order was therefore final, and except for the court's reservation of the power to encourage compliance, was "consigned to the shelves of finished business." Id. By way of contrast, "[a]n interlocutory order or decree is provisional or preliminary only. It does not determine the issues joined in the suit, but merely directs some further proceedings preparatory to the final decree." (Emphasis added.) Johnson v. Roberson, 171 N.C. 194, 196, 88 S.E. 231, 231-32 (1916).

Plaintiff apparently learned of the suspected fraudulent conveyance just prior to 1 August 1973, when he filed a motion in the cause outlining the sale of corporate property to Mary H. Van Dorp. It would have been appropriate at that time to file an action alleging fraud rather than attempt to raise the question by a motion in the cause. The facts adduced in support of the charge as set forth in the motion were, unfortunately, inapposite to any issue determined by the court or to any directive included in its order of 18 May 1970.

Even were we to deem the 18 May 1970 order interlocutory, the three-year statute of limitations, G.S. 1-52(9), would have nevertheless compelled entry of summary judgment. A cause of action to set aside an instrument for fraud accrues and the statute of limitations begins to run when the aggrieved party discovers or should have discovered the facts constituting the fraud. Wilson v. Development Company, 276 N.C. 198, 171 S.E.2d 873 (1970). There can be no recovery except on the case made by the pleadings, of course, Moody v. Kersey, 270 N.C. 614, 155 S.E.2d 215 (1967); Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215 (1954), and claim of fraud must be stated with particularity. Rule 9(b), N.C. Rules of Civil Procedure. Had plaintiff discovered the alleged fraud as late as 1 August 1973, he would have had only three years from that time to amend his complaint to state properly a cause of action for fraud. See Roberts v. Coca Cola Bottling Co., 257 N.C. 656, 127 S.E.2d 236 (1962).

For the reasons stated above, we find that the order of summary judgment was appropriately entered. The court's judgment is, therefore,

Affirmed.

VAUGHN and HARRY C. MARTIN, JJ., concur.