{ "id": 8521108, "name": "MARILYN BAKER, AMY CHAMBERS, GWENDOLYN CLARK, JOSEPH LAMBRIGHT, CARL LEACH, MARY JORDAN, FRANKIE HARRINGTON, JOHN HUBBARD, ANNIE B. LYNN, LENDELL MEDLIN, REUBEN WATERS, ANGELA WALKER, CURTIS WALKER, PERCY WILLIAMS and GLENN WRIGHT, Plaintiffs v. LEROY RUSHING, CLAUDE STEVEN MOSLEY, THE FRANKLIN HOTEL, INC., individually and as general partner of THE FRANKLIN APARTMENTS OF MONROE, a North Carolina general partnership, RUSHING CONSTRUCTION CO., INC., d/b/a THE FRANKLIN HOTEL, Defendants", "name_abbreviation": "Baker v. Rushing", "decision_date": "1991-10-15", "docket_number": "No. 9020DC1351", "first_page": "240", "last_page": "250", "citations": [ { "type": "official", "cite": "104 N.C. App. 240" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "323 F.2d 29", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 101075 ], "year": 1963, "pin_cites": [ { "parenthetical": "where the General Assembly has legislated with respect to the subject matter of a common law rule, the statute supplants the common law with respect to the particular rule" } ], "opinion_index": 0, "case_paths": [ "/f2d/323/0029-01" ] }, { "cite": "210 F. Supp. 844", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 88747 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/f-supp/210/0844-01" ] }, { "cite": "362 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "321 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568898, 2572710, 2569255, 2570411, 2568636 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/321/0296-03", "/nc/321/0296-01", "/nc/321/0296-02", "/nc/321/0296-04", "/nc/321/0296-05" ] }, { "cite": "358 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "694" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12136450 ], "year": 1987, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0534-01" ] }, { "cite": "355 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "195", "parenthetical": "an action for breach of the implied warranty of habitability is wholly contractual" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169933 ], "year": 1987, "pin_cites": [ { "page": "371", "parenthetical": "an action for breach of the implied warranty of habitability is wholly contractual" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0362-01" ] }, { "cite": "134 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "261 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572812 ], "year": 1964, "pin_cites": [ { "page": "258-59" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0256-01" ] }, { "cite": "39 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "226 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622145 ], "year": 1946, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0537-01" ] }, { "cite": "387 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "665" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520828 ], "year": 1990, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0316-01" ] }, { "cite": "308 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522616 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0139-01" ] }, { "cite": "362 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "817", "parenthetical": "the possibility of inconsistent verdicts on the same factual issues satisfies the substantial right requirement of Sections 1-277 and 7A-27(d)" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357716 ], "year": 1987, "pin_cites": [ { "page": "9", "parenthetical": "the possibility of inconsistent verdicts on the same factual issues satisfies the substantial right requirement of Sections 1-277 and 7A-27(d)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0001-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "408" }, { "page": "408-09" } ], "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "439" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "381 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1989, "pin_cites": [ { "page": "490" }, { "page": "490" }, { "page": "491" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527773 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "24" }, { "page": "24" }, { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0020-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "361-62" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 954, "char_count": 24066, "ocr_confidence": 0.772, "pagerank": { "raw": 3.4114400681089664e-07, "percentile": 0.8779903770451482 }, "sha256": "07c0ea34e1acce5d39a4ec1b66842d28e01bc05dc73f62a78eba808003a0b23b", "simhash": "1:2ce8c43f1c2ec278", "word_count": 3827 }, "last_updated": "2023-07-14T22:39:04.224888+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge EAGLES concur." ], "parties": [ "MARILYN BAKER, AMY CHAMBERS, GWENDOLYN CLARK, JOSEPH LAMBRIGHT, CARL LEACH, MARY JORDAN, FRANKIE HARRINGTON, JOHN HUBBARD, ANNIE B. LYNN, LENDELL MEDLIN, REUBEN WATERS, ANGELA WALKER, CURTIS WALKER, PERCY WILLIAMS and GLENN WRIGHT, Plaintiffs v. LEROY RUSHING, CLAUDE STEVEN MOSLEY, THE FRANKLIN HOTEL, INC., individually and as general partner of THE FRANKLIN APARTMENTS OF MONROE, a North Carolina general partnership, RUSHING CONSTRUCTION CO., INC., d/b/a THE FRANKLIN HOTEL, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nPlaintiffs appeal from summary judgment entered for defendants The Franklin Apartments of Monroe, a North Carolina General Partnership (the Partnership), Claude Steven Mosley (Mosley), and The Franklin Hotel, Inc. (Hotel, Inc.).\nPlaintiffs\u2019 complaint alleges claims against Leroy Rushing, Mosley, Hotel, Inc., the Partnership, and Rushing Construction Co., Inc. d/b/a The Franklin Hotel for breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, unfair or deceptive trade practices, unfair debt collection practices, trespass, trespass to chattels, and conversion.\nThe evidence in the light most favorable to plaintiffs reveals that plaintiffs resided at 204 West Franklin Street in Monroe, North Carolina, in a building known as \u201cThe Franklin Hotel.\u201d Their periods of occupancy commenced on various dates beginning in early 1980 and continuing through October 1988. While living in The Franklin Hotel, plaintiffs made weekly payments which were described as \u201crent,\u201d and none of the plaintiffs had other residences. During plaintiffs\u2019 tenancies, numerous defects existed in the premises. These defects included lack of hot water at certain times during the month, defective radiators, leaking ceilings, nonweathertight windows, missing windows, roach and rodent infestation, defective doorlocks, faulty plumbing, and accumulation of trash in the common areas. No repairs to the premises were made even after plaintiffs\u2019 repeated requests for same.\nThe owner of The Franklin Hotel from November 1982 until February 1985 was the Partnership. At the time it purchased the building, the Partnership consisted of two individuals: Mosley and Jacob Curtis Blackwood (Blackwood). Subsequently, Mosley and Blackwood each formed corporations: The Franklin Investments, Inc. (formed by Blackwood in February 1984) and Franklin Rentals, Inc. (formed by Mosley in December 1984). In February 1985, the Partnership conveyed The Franklin Hotel to the two corporations. By 1988, Mosley through purchases of stock had become the sole shareholder of both Franklin Rentals, Inc. and Franklin Investments, Inc. He was also president and director of both corporations, and was responsible for the hiring and firing of The Franklin Hotel\u2019s on-site building managers and for determining rental rates and authorizing repairs. In January 1988, a hotel license was obtained for The Franklin Hotel. Prior to that time, summary ejectment was used to remove tenants from the building. In July 1988, Franklin Investments, Inc. and Franklin Rentals, Inc. merged into Hotel, Inc. On 30 September 1988, The Franklin Hotel was conveyed to defendant Rushing Construction Co., Inc. Mosley continued to manage the building pursuant to an oral agreement with defendant Leroy Rushing (Rushing).\nIn November 1988, Mosley instructed the on-site building manager to begin informing plaintiffs that the building would be closed at the end of December 1988. On 22 December 1988, a temporary restraining order was issued by Chief District Judge Donald Huffman prohibiting Rushing, his agents, employees or building manager from evicting plaintiffs or interfering with plaintiffs\u2019 quiet enjoyment of the premises. Despite personal service of this order on Rushing on 22 December 1988, plaintiffs were evicted from their apartments without judicial process on 23 December 1988 by Rushing and Mosley. Several police officers were also present during the eviction. On this same day, the city\u2019s chief building inspector inspected the premises. The building inspector determined that The Franklin Hotel was unsafe and unfit for human habitation, and on 28 December 1988, ordered the building condemned. On 30 December 1988, Hotel, Inc. filed articles of dissolution with the Office of the Secretary of State.\nThe issues presented are I) whether the summary judgment for fewer than all defendants affects a substantial right and is therefore immediately appealable; and II) whether summary judgment can be sustained on the grounds that (A) plaintiffs were not \u201cresidential tenants\u201d as that term is used in Chapter 42 of the General Statutes, (B) Mosley has no individual liability because he was acting as an agent for the corporate owners of The Franklin Hotel, (C) the Partnership has no liability because it has been dissolved, and (D) Hotel, Inc. has no liability because of its dissolution on 30 December 1988.\nI\nThe trial court entered summary judgment in favor of defendants Mosley, the Partnership, and Hotel, Inc. The record reveals, however, that plaintiffs\u2019 action is still pending against the remaining defendants, namely Rushing and Rushing Construction Co., Inc. Because the trial court\u2019s award of summary judgment is for fewer than all defendants, it is an interlocutory order as it \u201cdoes not dispose of the case, but leaves it for further action for the trial court in order to settle and determine the entire controversy.\u201d Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). Although there is no right of immediate appeal from interlocutory orders and judgments, Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990), appeal of an interlocutory order is permitted in two situations. Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 24, 376 S.E.2d 488, 490, disc. rev. denied, 324 N.C. 577, 381 S.E.2d 772 (1989). First, a separable portion of a multiple claim or multiple party action that has been finally adjudicated may be appealed pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b) (1990) if the trial judge certifies that there is no just reason to delay the appeal. Davidson, 93 N.C. App. at 24, 376 S.E.2d at 490. The trial court in this case made no certification, therefore no appeal lies under Rule 54(b).\nSecond, if an interlocutory order is not appealable under Rule 54(b), it may nevertheless be appealed if it meets the requirements of N.C.G.S. \u00a7\u00a7 1-277 (1983) and 7A-27(d) (1989). Davidson, 93 N.C. App. at 24, 376 S.E.2d at 491. Under these statutes, interlocutory appeals are most commonly allowed if delaying the appeal will prejudice a substantial right. Id. Whether a substantial right will be prejudiced by delaying appeal must be determined on a case by case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982). However, it is well settled that the right to avoid the possibility of two trials on the same factual issues can be a substantial right and therefore one which may support immediate appeal of an interlocutory order. See, e.g., J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 9, 362 S.E.2d 812, 817 (1987) (the possibility of inconsistent verdicts on the same factual issues satisfies the substantial right requirement of Sections 1-277 and 7A-27(d)).\nIn the instant case, plaintiffs have made the same claims against several defendants and the resolution of these claims depends upon the determination of common factual issues, e.g., the condition of the building in which plaintiffs resided. Furthermore, plaintiffs have a substantial right to have one jury decide whether one, some, all, or none of the joint defendants caused plaintiffs\u2019 injuries. Bernick, 306 N.C. at 439, 293 S.E.2d at 408-09. Accordingly, the order granting summary judgment as to defendants Mosley, the Partnership, and Hotel, Inc. affects a substantial right and is immediately appealable.\nII\nThe critical question on review of a summary judgment is whether there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). In making this determination, the appellate courts are to consider only the evidence which was before the trial court. 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure \u00a7 2716 (1983). The movant is not permitted to advance new theories or raise new issues in support of the motion on appeal. Id. Here, the evidence at summary judgment related to whether plaintiffs were \u201cresidential tenants,\u201d whether defendant Mosley had any individual liability, and whether the Partnership and Hotel, Inc. were absolved of liability because of their respective dissolutions. Accordingly, our review is limited to the question of wh\u00e9ther the summary judgment can be supported by any or all of these grounds.\nA\nDefendants contend that the building in which plaintiffs resided was a hotel, and that, accordingly, plaintiffs are not \u201cresidential tenants\u201d entitled to the protection of Chapter 42, Article 5, \u201cResidential Rental Agreements\u201d (the Act) or Chapter 42, Article 2A, \u201cEjectment of Residential Tenants.\u201d Plaintiffs argue to the contrary.\nThe Act provides protection to those persons occupying \u201ca dwelling unit . . . normally held out for the use of residential tenants who are using the dwelling as their primary residence.\u201d N.C.G.S. \u00a7 42-40(2) (1984). The Act expressly excludes from its application \u201ctransient occupancy in a hotel, motel, or similar lodging subject to regulation by the Commission for Health Services.\u201d N.C.G.S. \u00a7 42-39(a) (1984). Article 2A of Chapter 42 prohibits landlord self-help eviction where residential tenancies are involved. See N.C.G.S. \u00a7 42-25.6 (1984) (requiring landlord to proceed under the statutory procedures for summary ejectment of a \u201cresidential tenant\u201d). Whether the plaintiffs here were residential tenants must be determined by looking at all of the circumstances, and the fact that a building is identified as a \u201chotel\u201d and those who reside in it as \u201cguests\u201d is not determinative.\nThe evidence at the summary judgment hearing showed that each plaintiff resided in The Franklin Hotel pursuant to an oral lease, that each plaintiff leased his apartment as his sole and permanent residence, and that some plaintiffs had resided in the building for as long as six years. Each apartment contained either one or two bedrooms, a kitchen/living room and a separate bath. The payments for the apartments were made weekly and were referred to by each party as \u201crent.\u201d The evidence showed that in January 1988, Mosley obtained a hotel license for the building, but that thereafter no significant changes in the operation of the premises occurred. Plaintiffs continued to make payments on a weekly basis as they had prior to January 1988, and these payments continued to be described as \u201crent.\u201d\nThis evidence could support a finding that plaintiffs were residential tenants who leased the apartments as their primary residences and thus were entitled to assert- claims under Article 5 and Article 2A of Chapter 42. At a minimum, the evidence presents genuine issues of material fact regarding plaintiffs\u2019 status as residential tenants, and for this reason, summary judgment was improperly granted.\nB\nMosley argues that his status as an agent precludes his personal liability for the alleged torts of trespass, trespass to chattels, and conversion, and for the claims based on his alleged tortious conduct, specifically the claims for unfair or deceptive trade practices, N.C.G.S. \u00a7 75-1.1 (1988), and unfair debt collection practices, N.C.G.S. \u00a7 75-50 et seq. (1988 & Supp. 1990). We disagree. It is well settled in North Carolina that a person is personally liable for all torts committed by him, notwithstanding that he may have acted as an agent for another or as an officer for a corporation. Strang v. Hollowell, 97 N.C. App. 316, 318, 387 S.E.2d 664, 665 (1990). Therefore, summary judgment cannot be supported on this basis.\nMosley also argues that any wrongful acts committed by him giving rise to plaintiffs\u2019 contract claims cannot support a claim against him in his individual capacity. Whether an agent is subject to personal liability for acts done on behalf of his principal depends on the circumstances of the case. An authorized agent who enters into a contract on behalf of a disclosed principal generally is not personally liable to third parties since the contract is with the principal. Walston v. R. B. Whitley & Co., 226 N.C. 537, 540, 39 S.E.2d 375, 377 (1946). However, an agent who makes a contract for an undisclosed principal is personally liable as a party to the contract unless the other party had actual knowledge of the agency and of the principal\u2019s identity. Howell v. Smith, 261 N.C. 256, 258-59, 134 S.E.2d 381, 383 (1964). The record before the trial court reveals no evidence on the issue of whether Mosley was acting as an agent on behalf of a disclosed principal or on behalf of an undisclosed principal. Therefore, summary judgment was improper on plaintiffs\u2019 contract claims for breach of the implied covenant of quiet enjoyment and breach of the implied warranty of habitability. See Miller v. C. W. Myers Trading Post, Inc., 85 N.C. App. 362, 371, 355 S.E.2d 189, 195 (1987) (an action for breach of the implied warranty of habitability is wholly contractual).\nMoreover, summary judgment on the implied warranty of habitability claim was improper for an additional reason. The Act empowers tenants to bring an action against their landlord for breach of the implied warranty of habitability. Cotton v. Stanley, 86 N.C. App. 534, 537, 358 S.E.2d 692, 694, disc. rev. denied, 321 N.C. 296, 362 S.E.2d 779 (1987). The Act defines a landlord as:\nany owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by this Article.\nN.C.G.S. \u00a7 42-40(3) (1984). This broad, statutory definition of landlord makes irrelevant in determining the liability of an agent the common law distinction between disclosed and undisclosed principals. Thus Mosley, if found to be a \u201cperson having the actual or apparent authority of an agent to perform the duties imposed\u201d by the Act, would be subject to individual liability for plaintiffs\u2019 claim for breach of the implied warranty of habitability. See Allen v. Standard Crankshaft & Hydraulic Co., 210 F. Supp. 844 (W.D.N.C. 1962), aff\u2019d, 323 F.2d 29 (4th Cir. 1963) (where the General Assembly has legislated with respect to the subject matter of a common law rule, the statute supplants the common law with respect to the particular rule).\nOn the issue of whether Mosley was \u201ca person with the actual or apparent authority of an agent to perform the duties imposed\u201d by the Act, there is evidence in the record that Mosley supervised the on-site manager of the building, gave him instructions on the daily operation of the premises, and had authority to order repairs and to put and keep the premises in a fit and habitable condition. This evidence could support a finding that Mosley was a landlord as defined by the Act. At a minimum, a genuine issue of material fact exists as to Mosley\u2019s status as a landlord and, therefore, summary judgment cannot be supported on this basis.\nC\nThe Partnership asserts that when its two corporate partners merged in July 1988, the Partnership dissolved and, as a result, became nonexistent and no longer subject to suit. Assuming arguendo that the merger of the two corporate partners effectively caused a dissolution of the Partnership, see N.C.G.S. \u00a7 59-59 (1989) (defining dissolution as \u201cthe change in the relation of the partners caused by any partner ceasing to be associated in the carrying on as distinguished from the winding up of the business\u201d), \u201cdissolution of itself has no effect on existing liabilities of the partnership. If it did, partners could escape their obligations by dissolving.\u201d J. Crane & A. Bromberg, Law of Partnership \u00a7 79 (1968) (hereinafter Crane); see also II A. Bromberg & L. Ribstein, Bromberg and Ribstein on Partnership \u00a7 7.14 (1988). North Carolina Gen. Stat. \u00a7 59-60 (1989) provides that upon dissolution, \u201cthe partnership is not terminated, but continues until the winding up of partnership affairs is completed.\u201d In other words, \u201cdissolution designates the point in time when the partners cease to carry on the business together; termination is the point in time when all the partnership affairs are wound up, winding up [meaning] the process of settling partnership affairs after dissolution.\u201d Unif. Partnership Act \u00a7 29, Official Comment, 6 U.L.A. 364 (1969). A partnership\u2019s legal existence continues during the winding up of its affairs, and the partnership and partners can sue and be sued for the enforcement of the partnership\u2019s rights and obligations. Crane at \u00a7 79; see also N.C.G.S. \u00a7 59-66(a) (1989) (dissolution does not of itself discharge the existing liability of any partner).\nThe Partnership offered no evidence, documentary or otherwise, as to when, if ever, it completed the winding up of its affairs. Although the Partnership did offer documentary evidence of the July 1988 merger of the Partnership\u2019s two corporate partners, there is evidence in the record tending to show that the Partnership continued to do business after the merger, or at least was involved in winding up, and therefore had not been terminated. For example, the general warranty deed conveying The Franklin Hotel property to Rushing Construction Co., Inc., executed on 30 September 1988, lists as grantor \u201cThe Franklin Apartments of Monroe, a North Carolina General Partnership.\u201d The deed is signed \u201cThe Franklin Apartments of Monroe by The Franklin Hotel, Inc., Partner, by Claude Steven Mosley, President.\u201d Accordingly, the evidence cannot support summary judgment on this basis.\nD\nHotel, Inc. contends that upon its dissolution on 30 December 1988, the corporation ceased being subject to suit. We disagree. Contrary to defendant\u2019s argument, dissolution does not terminate the corporation\u2019s existence; a dissolved corporation continues in existence indefinitely. R. Robinson, Robinson on North Carolina Corporation Law \u00a7 28.1 (1990). The law in effect when plaintiffs filed their complaint allowed for suits against dissolved corporations based on any liability incurred \u201cprior to such dissolution.\u201d N.C.G.S-. \u00a7 55414(d) (1982). This is consistent with the current Business Corporation Act. See N.C.G.S. \u00a7 55-14-05(b)(5) (1990). Thus, under either statute, dissolution does not terminate the corporation\u2019s existence nor its amenability to suit. Accordingly, summary judgment cannot be supported on this basis.\nFor the foregoing reasons, the trial court erred in granting summary judgment for Mosley, the Partnership, and Hotel, Inc.\nReversed and remanded.\nChief Judge HEDRICK and Judge EAGLES concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Legal Services of Southern Piedmont, Inc., by Vernon J. Cahoon and Theodore O. Fillette, III, for plaintiff-appellants.", "Griffin, Caldwell, Helder & Lee, P.A., by W. David Lee, for defendant-appellees." ], "corrections": "", "head_matter": "MARILYN BAKER, AMY CHAMBERS, GWENDOLYN CLARK, JOSEPH LAMBRIGHT, CARL LEACH, MARY JORDAN, FRANKIE HARRINGTON, JOHN HUBBARD, ANNIE B. LYNN, LENDELL MEDLIN, REUBEN WATERS, ANGELA WALKER, CURTIS WALKER, PERCY WILLIAMS and GLENN WRIGHT, Plaintiffs v. LEROY RUSHING, CLAUDE STEVEN MOSLEY, THE FRANKLIN HOTEL, INC., individually and as general partner of THE FRANKLIN APARTMENTS OF MONROE, a North Carolina general partnership, RUSHING CONSTRUCTION CO., INC., d/b/a THE FRANKLIN HOTEL, Defendants\nNo. 9020DC1351\n(Filed 15 October 1991)\n1. Appeal and Error \u00a7 119 (NCI4th)~ summary judgment \u2014 fewer than all defendants \u2014appealable\nSummary judgment for fewer than all defendants was immediately appealable where the trial court made no certification under N.C.G.S. \u00a7 1A-1, Rule 54(b) but plaintiffs had made the same claims against several defendants and the resolution of those claims depended upon the determination of common factual issues. Furthermore, plaintiffs have a substantial right to have one jury decide whether one, some, all, or none of the joint defendants caused their injuries.\nAm Jur 2d, Appeal and Error \u00a7 104.\n2. Landlord and Tenant \u00a7 1 (NCI3d)\u2014 residential hotel \u2014 eviction \u2014 summary judgment\nSummary judgment was improperly granted for some defendants in ah action arising from the closing of a residential hotel where the evidence at the summary judgment hearing showed3 that each plaintiff resided in The Franklin Hotel pursuant to an oral lease; each plaintiff leased his apartment as his sole and permanent residence; some plaintiffs had resided in the.- building for as-, long as six years; each apartment contained one or two bedrooms, a kitchen/living room and a separate bath; the' payments for the apartments were made weekly and were referred to by each party as \u201crent\u201d; a hotel license was obtained for the building, but no significant changes in the operation of the premises occurred; and plaintiffs continued to make weekly payments which were described as rent. At a minimum, the evidence presents genuine issues of material fact regarding plaintiffs\u2019 status as residential tenants.\nAm Jur 2d, Landlord and Tenant \u00a7 6.\n3. Principal and Agent \u00a7 11 (NCI3d)\u2014 torts of agent \u2014 personal liability\nSummary judgment could not be supported for defendant Mosley in an action arising from the closing of a residential hotel where Mosley contended that his status as an agent precluded personal liability for the alleged torts of trespass, trespass to chattels, conversion, unfair or deceptive practices, and unfair debt collection practices. It is well settled that a person is personally liable for all torts committed by him or her, notwithstanding that the action may have been taken as an agent for another or as an officer of a corporation.\nAm Jur 2d, Agency \u00a7 309.\n4. Principal and Agent \u00a7 11 (NCI3d| \u2014 acts of agent \u2014 contract claims \u2014 summary judgment improper\nSummary judgment was improperly granted for defendant Mosley in his individual capacity on contract claims for breach of the implied covenant of quiet enjoyment and breach of the implied warranty of habitability in an action arising from the closing of a residential hotel where the record before the trial court reveals no evidence on the issue of whether Mosley was acting as an agent on behalf of a disclosed principal or on behalf of an undisclosed principal.\nAm Jur 2d, Agency \u00a7\u00a7 302, 316.\n5. Principal and Agent \u00a7 11 (NCI3d)\u2014 breach o\u00ed implied warranty of habitability \u2014personal liability of agent \u2014summary judgment improper\nSummary judgment for defendant on the issue of personal liability for breach of the implied warranty of habitability was improper in part because N.C.G.S. \u00a7 42-40(3) includes a broad, statutory\u2019 definition of landlord which makes irrelevant the common law distinction between disclosed and undisclosed principals. There is evidence that defendant Mosley supervised the on-site manager of the building, gave him instructions on the daily op\u00e9ration of the premises, and had authority to order repairs and to put and keep the premises in a fit and habitable condition. At a minimum, a genuine issue of material fact exists as to Mosley\u2019s status as a landlord.\nAm Jur 2d, Landlord and Tenant \u00a7\u00a7 767-769.\n6. Partnership \u00a7 9 (NCI3d)\u2014 merger of corporate powers \u2014 continued existence\nSummary judgment should not have been granted in favor of a partnership in an action arising from the closing of a residential hotel where the two corporate partners had merged. Although defendant partnership contended that it had dissolved and was no longer subject to suit, the partnership offered no evidence as to when it completed the winding up of its affairs, and there is evidence in the record tending to show that the partnership continued to do business after the merger, or at least was involved in winding up, and therefore had not been terminated.\nAm Jur 2d, Partnership \u00a7\u00a7 888, 889.\n7. Corporations \u00a7 207 (NCI4th)\u2014 dissolution \u2014 amenability to suit\nSummary judgment for defendant corporation could not be supported by the dissolution of the corporation in an action arising from the closing of a residential hotel. Dissolution does not terminate the corporation\u2019s existence nor its amenability to suit. N.C.G.S. \u00a7 55-14-05(b)(5).\nAm Jur 2d, Corporations \u00a7\u00a7 2882, 2896, 2903.\nAPPEAL by plaintiffs from order entered 11 October 1990 in UNION County District Court by Judge Kenneth W. Honeycutt. Heard in the Court of Appeals 25 September 1991.\nLegal Services of Southern Piedmont, Inc., by Vernon J. Cahoon and Theodore O. Fillette, III, for plaintiff-appellants.\nGriffin, Caldwell, Helder & Lee, P.A., by W. David Lee, for defendant-appellees." }, "file_name": "0240-01", "first_page_order": 268, "last_page_order": 278 }