Beck v. American Bankers Life Assurance Co. of Florida

243 S.E.2d 414 (1978)

Joseph Brown BECK
v.
AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA, Jack Walsh, Individually, and Donald R. Tenaglia, Individually.

No. 7718SC566.

Court of Appeals of North Carolina.

May 2, 1978.

Alspaugh, Rivenbark & Lively by James B. Rivenbark, Greensboro, for plaintiff-appellee.

Jordan, Wright, Nichols, Caffrey & Hill by Karl N. Hill, Jr., Greensboro, for defendant-appellant.

PARKER, Judge.

Defendant's sole assignment of error is directed to the portion of the court's order granting plaintiff's motion for partial summary judgment. G.S. 1A-1, Rule 56(d) allows the trial court to grant a partial summary judgment in appropriate circumstances. If the partial summary judgment is final as to the matters adjudicated therein, or if it affects a substantial right, it is immediately appealable. Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Rentals, Inc. v. Rentals, Inc., 26 N.C.App. 175, 215 S.E.2d 398 (1975). Although the partial summary judgment entered in the present case is somewhat ambiguous and its finality is open to question, it does appear to contemplate that defendant must make immediate payment to plaintiff of a substantial sum of money, the exact amount of which the parties were directed to determine. The record contains a supersedeas bond filed by defendant on 7 March 1977, which recites that "the amount of commissions has now been determined as $21,500.73." This recitation, read in conjunction with the language of the partial summary judgment entered by the court, appears to have been considered by the parties to this appeal as converting the judgment into a final judgment that plaintiff is presently entitled to recover of defendant the sum of $21,500.73. We accept this interpretation and find the court's partial summary judgment presently appealable.

Examining the material before the court when it passed on plaintiff's motion for summary judgment, we find that the trial court appears to have granted the partial summary judgment for plaintiff solely on the basis of defendant's answer to the following interrogatory:

Question: How much money is the company holding in Joseph Beck's account?

Answer: As of April 15, 1976, $23,009.34.

The court apparently interpreted this answer as establishing defendant's liability to pay plaintiff the amount it admitted it was "holding in Joseph Beck's account." We do not agree with the trial court's interpretation of the legal significance of defendant's answer to the interrogatory. That answer must be viewed in the light of the statements contained in defendant's affidavits, read in conjunction with the allegations in its counterclaim, all of which were before the court when it passed on plaintiff's motion for summary judgment. When so viewed, it is clear that defendant's answer did not amount to an admission that it was liable to plaintiff for all sums shown as held by it in the account which it maintained on its books in plaintiff's name. Defendant's affidavits support its allegations that plaintiff and his sub-agents sold a number of policies by use of misrepresentations, harassment, and coercion in violation of the insurance laws of North Carolina. The employment contract, which was attached to plaintiff's complaint, contains provisions negating plaintiff's right to commissions when policies are procured in a manner such as described in the affidavits. Defendant has therefore shown that there are genuine issues of material fact as to what amount of commissions, if any, plaintiff is entitled to receive, and the trial court erred in entering summary judgment on this issue.

Accordingly, the portion of the court's order granting plaintiff's motion for summary judgment on the issue of the amount of commissions he is entitled to receive from defendant is

Reversed.

VAUGHN and WEBB, JJ., concur.