{ "id": 11796319, "name": "TOWN CENTER ASSOCIATES, Plaintiff v. Y & C CORPORATION, Defendant v. THE CROSLAND GROUP, INC., Counterclaim Defendant", "name_abbreviation": "Town Center Associates v. Y & C Corp.", "decision_date": "1997-09-02", "docket_number": "No. COA96-1254", "first_page": "381", "last_page": "386", "citations": [ { "type": "official", "cite": "127 N.C. App. 381" } ], "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": "307 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "391", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526893 ], "year": 1983, "pin_cites": [ { "page": "372", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0370-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "486 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "245" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 705", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712954 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/126/0705-01" ] }, { "cite": "363 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "643", "parenthetical": "avoidance of trial is not substantial right entitling party to appeal" }, { "page": "643" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 476", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358470 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "478", "parenthetical": "avoidance of trial is not substantial right entitling party to appeal" }, { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0476-01" ] }, { "cite": "321 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524317 ], "year": 1984, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0627-01" ] }, { "cite": "362 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357716 ], "year": 1987, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0001-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "year": 1982, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "251 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "447" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "year": 1979, "pin_cites": [ { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "460 S.E.2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 730", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917406 ], "year": 1995, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0730-01" ] }, { "cite": "338 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 389", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718630, 4716810, 4717521, 4716884, 4714901 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0389-01", "/nc/315/0389-05", "/nc/315/0389-04", "/nc/315/0389-03", "/nc/315/0389-02" ] }, { "cite": "334 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 206", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521255 ], "year": 1985, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0206-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "279 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "869" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519378 ], "year": 1981, "pin_cites": [ { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0033-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "871", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "424", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] } ], "analysis": { "cardinality": 620, "char_count": 12038, "ocr_confidence": 0.756, "pagerank": { "raw": 2.613159337765418e-07, "percentile": 0.8206314344967602 }, "sha256": "9ca2975e5b2769eb83a9e39f7a2c2bafd10bd5476c8cd479ed70a18dd421a7ad", "simhash": "1:13cf0e771f7f02c4", "word_count": 2025 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and WALKER concur." ], "parties": [ "TOWN CENTER ASSOCIATES, Plaintiff v. Y & C CORPORATION, Defendant v. THE CROSLAND GROUP, INC., Counterclaim Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant Y & C Corporation (Y & C) appeals the grant of partial summary judgment to plaintiff, the grant of summary judgment to counterclaim defendant The Crosland Group, Inc. (Crosland), as well as the denial of Y & C\u2019s motion for summary judgment. We dismiss the appeal as interlocutory.\nPertinent facts and procedural history are as follows: plaintiff owns Town Center Plaza shopping center in Charlotte. Crosland acts as managing agent for the center. Y & C came into possession of a leasehold in the shopping center by mesne assignments of the lease and operates the Hot Wok Restaurant on the leasehold.\nPlaintiff claimed Y & C failed to meet requirements of the sales achievement clause (the clause) in the lease assignment, and informed Y & C in writing 2 February 1995 of its intent to exercise the termination clause contained in the lease. Y & C was directed to vacate the premises on or before 2 April 1995, but failed to do so.\nSeeking possession of the premises and damages, plaintiff initiated the instant action against Y & C 17 April 1995. Defendant filed answer and counterclaim 31 July 1995, as well as a motion to join Crosland. Joinder was allowed 6 April 1996.\nOn 5 January 1996, Y & C moved to dismiss the complaint and for summary judgment on grounds that plaintiff\u2019s continued acceptance of rent resulted in waiver of any alleged breach of the lease. The motions were consolidated and denied in an order entered 8 April 1996 (the 8 April order) by Judge Marcus L. Johnson. However, Y & C was allowed to amend its answer to include the affirmative defense of waiver.\nAs amended, Y & C\u2019s answer asserted the following as defenses: (1) plaintiff was equitably estopped from enforcing the clause, (2) the clause was not part of the lease assignment, (3) plaintiff failed to allow Y & C the opportunity allowed by the lease to cure any alleged breach of the clause, (4) plaintiff failed to provide proper notice of termination, and (5) plaintiff waived any alleged breach by acceptance of rent payments. In addition, Y & C counterclaimed against plaintiff for breach of lease, fraud, and unfair or deceptive trade practices. Crosland was cited as a defendant regarding the second and third counterclaims.\nPlaintiff filed reply 8 September 1995 to Y & C\u2019s counterclaim, as did Crosland 18 June 1996. On 9 August 1996, plaintiff and Crosland moved for summary judgment on all issues raised by Y & C\u2019s counterclaims. The motion of each was granted as to Y & C\u2019s second and third counterclaims in an order filed 20 August 1996 (the 20 August order) by Judge James U. Downs, thereby dismissing all claims against Crosland. The court certified pursuant to N.C.G.S. \u00a7 1A-1 Rule 54 that it had entered final judgment \u201cas to one or more but fewer than all of the counterclaims or parties, and there is no just reason for delay.\u201d Y & C filed timely notice of appeal.\nPlaintiff initially argues both in its brief in opposition to the issuance of a writ of certiorari and in its appellate brief that Y & C\u2019s appeal is interlocutory. Plaintiff\u2019s assertion has merit regarding both the 8 April and the 20 August orders.\nThe former, denying Y & C\u2019s motion for summary judgment, does not qualify as an appealable order. See Lamb v. Wedgewood South Corp., 308 N.C. 419, 424, 302 S.E.2d 868, 871 (1983) (citations omitted) (\u201cdenial of a motion for summary judgment is not appealable\u201d). We therefore do not discuss the 8 April order further.\nThe 20 August order, granting summary judgment on Y & C\u2019s second and third counterclaims, failed to resolve all issues between all parties and thus was not a final judgment, i.e., one which disposed of the case as to all parties, leaving nothing to be judicially determined between them in the trial court. Atkins v. Beasley, 53 N.C. App. 33, 36, 279 S.E.2d 866, 869 (1981). Although appeal of right lies from a final judgement, N.C.G.S. \u00a7 7A-27 (1995),\n[a] grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\nLiggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993).\nAn interlocutory appeal is permissible only under specific statutory exceptions. Brown v. Brown, 77 N.C. App. 206, 208, 334 S.E.2d 506, 508 (1985), disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986). First, N.C.G.S. \u00a7 1A-1 Rule 54(b) provides that the trial court\nmay enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment.\nN.C.G.S. \u00a7 1A-1, Rule 54(b) (1990). The effect of the court\u2019s action is to permit immediate appeal of the \u201cfinal\u201d judgment.\nSecond, N.C.G.S. \u00a7\u00a7 1-277 and 7A-27(d) allow an interlocutory appeal when the trial court\u2019s order (1) affects a substantial right, (2) in effect determines the action and prevents a judgment from which an appeal might be taken, (3) discontinues an action, or (4) grants or refuses a new trial. N.C.G.S. \u00a7 1-277 (1996); N.C.G.S. \u00a7 7A-27(d) (1995); N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995).\nThe 20 August order contained the trial court\u2019s certification pursuant to Rule 54(b); however, a trial court cannot \u201cby denominating [its] decree a \u2018final judgment\u2019 make it immediately appealable under Rule 54(b) if it is not such a judgment.\u201d Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). Although entry of summary judgment as to Y & C\u2019s counterclaims for fraud and unfair or deceptive trade practices effectively concluded all claims against Crosland, the latter was a party to the suit only in its capacity as agent of plaintiff. Hence, Crosland\u2019s liability, if ariy, to Y & C remained dependant upon determination of plaintiff\u2019s liability as principal, which issue has not yet been resolved in the trial court. It cannot fairly be said that delay of appellate review of Crosland\u2019s contingent liability would be unjust. Under such circumstance, the trial court\u2019s denomination of its judgment as \u201cfinal\u201d based upon no just reason for delay was error.\nWe next consider whether defendant may pursue appeal pursuant to G.S. \u00a7\u00a7 1-277 and 7A-27. Only the substantial right exception under the sections is potentially applicable here.\nAppeal of an interlocutory order based upon impairment of a substantial right requires finding (1) that the right in question qualifies as \u201csubstantial,\u201d see Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), and (2) that, absent immediate appeal, the right will be \u201clost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order,\u201d J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 6, 362 S.E.2d 812, 815 (1987). The particular facts of each individual case, and the procedural context in which the contested order was entered, govern the latter determination. Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249 (1984).\nIn the case sub judice, Y & C has twice been placed on notice by plaintiff that the latter challenges Y & C\u2019s appeal of the 20 August order as interlocutory: first, in plaintiffs \u201cResponse In Opposition To [Y & C\u2019s] Petition For Writ of Certiorari,\u201d and later in the initial argument set out in plaintiffs appellate brief. In its petition for writ of certiorari, Y & C discusses the issue of substantial right only as it affects the 8 April order, and there only in terms of rehashing its arguments that summary judgment should have been allowed in its favor so that an unnecessary trial might be prevented. See Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 478, 363 S.E.2d 642, 643 (1988) (avoidance of trial is not substantial right entitling party to appeal). Y & C at no point addresses the issue of loss of a substantial right in reference to the 20 August order, did not avail itself of the opportunity to file a reply brief for that purpose, see N.C.R. App. P. 28(h), and thus has \u201cfailed to meet [its] burden of showing that the appeal [of the 20 August order] has been properly taken.\u201d Hunter v. Hunter, 126 N.C. App. 705, -, 486 S.E.2d 244, 245 (1997). Notwithstanding such failure, and even though \u201c[i]t is not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal from an interlocutory order,\u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994), our independent review of the record reveals no substantial right of Y & C \u201cwill be lost by delaying the appeal until after a final judgment is entered.\u201d Horne, 88 N.C. App. at 478, 363 S.E.2d at 643.\nY & C also urges us in its petition to exercise our discretionary powers and to review the trial court\u2019s interlocutory orders through grant of a writ of certiorari. See N.C.R. App. P. 21(a)(1). We decline to do so. See Mckinney v. Royal Globe Insur. Co., 64 N.C. App. 370, 372, 307 S.E.2d 390, 391 (1983) (citations omitted) (purpose of \u201crules embodied in G.S. 1-277(a) and 7A-27(d)(1) is to \u2018prevent 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\u2019 \u201d (emphasis added)).\nAppeal dismissed.\nJudges GREENE and WALKER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Kennedy Covington Lobdell & Hickman, L.L.P., by Alice Carmichael Richey and Joseph W. Moss, Jr. for Plaintiff-Appellee and Counterclaim Defendant-Appellee.", "Richard F. Harris, III for Defendant-Appellant." ], "corrections": "", "head_matter": "TOWN CENTER ASSOCIATES, Plaintiff v. Y & C CORPORATION, Defendant v. THE CROSLAND GROUP, INC., Counterclaim Defendant\nNo. COA96-1254\n(Filed 2 September 1997)\n1. Appeal and Error \u00a7\u00a7 118, 119 (NCI4th)\u2014 summary judgment \u2014 not appealable\nIn an action arising from the termination of a lease, an appeal from the denial of a motion for summary judgment for Y&C and the granting of another against Y&C on its counterclaims was interlocutory. The denial of a motion for summary judgment is not an appealable order, and the summary judgment on Y&C\u2019s counterclaims failed to resolve all of the issues between the parties and thus was not a final judgment.\n2. Appeal and Error \u00a7 91 (NCI4th)\u2014 lease termination\u2014 summary judgment as to agent \u2014 certification by court\u2014 erroneous\nThe trial court\u2019s order granting summary judgment on cross-claims against Crosland in an action involving a lease termination failed to resolve all issues between all parties and was not a final judgment despite the trial court\u2019s certification pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b) where entry of the summary judgment concluded all claims related to Crosland, but Crosland was a party to the suit only in its capacity as agent of plaintiff and its liability, if any, remained dependent upon the unresolved determination of plaintiff\u2019s liability as principal.\n3. Appeal and Error \u00a7 87 (NCI4th)\u2014 lease assignment \u2014 summary judgment \u2014 interlocutory order \u2014 no substantial right lost\nAlthough Y & C was twice placed on notice by plaintiff that Y & C\u2019s appeal from two summary judgment orders was challenged as interlocutory, Y & C discussed the issue of substantial right as to one order only by rehashing its arguments that summary judgment should have been allowed in its favor to prevent an unnecessary trial, and at no point addressed the issue of loss of a substantial right as to the other order, thereby failing to meet its burden of showing that the appeal was properly taken. The Court of Appeals\u2019 independent review revealed that no substantial right would be lost by delaying appeal until after the final judgment.\n4. Appeal and Error \u00a7 292 (NCI4th)\u2014 interlocutory order\u2014 writ of certiorari \u2014 denied\nThe trial court declined to review through grant of a writ of certiorari interlocutory orders denying and granting summary judgments.\nAppeal by defendant from orders filed 8 April 1996 by Judge Marcus L. Johnson and 20 August 1996 by Judge James U. Downs in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 May 1997.\nKennedy Covington Lobdell & Hickman, L.L.P., by Alice Carmichael Richey and Joseph W. Moss, Jr. for Plaintiff-Appellee and Counterclaim Defendant-Appellee.\nRichard F. Harris, III for Defendant-Appellant." }, "file_name": "0381-01", "first_page_order": 417, "last_page_order": 422 }