{
  "id": 11144748,
  "name": "ROBERT D. ADAMS, Plaintiff-Appellant v. PHILLIP J. SAMUELS and VISCO GROUP, INC., Defendants-Appellees",
  "name_abbreviation": "Adams v. Samuels",
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  "casebody": {
    "judges": [
      "Judges GREENE and MARTIN concur."
    ],
    "parties": [
      "ROBERT D. ADAMS, Plaintiff-Appellant v. PHILLIP J. SAMUELS and VISCO GROUP, INC., Defendants-Appellees"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nPlaintiff Robert D. Adams, owner of Visco, Inc., negotiated with defendant Phillip J. Samuels for the sale of that company. During the negotiations, Samuels formed a corporation known as Visco Group that eventually entered into an asset-purchase agreement with Adams and Visco, Inc.\nThe asset-purchase agreement provided, inter alia, that Visco Group would make a promissory note in favor of Visco, Inc. This note was made, personally guaranteed by Samuels, and ultimately assigned to Adams.\nBoth the asset-purchase agreement and the promissory note contained \u201cset-off\u2019 provisions. The asset-purchase agreement provided in pertinent part that \u201c[u]pon the breach of any . . . agreement made by [Visco, Inc.] under this Agreement, [Visco Group] shall, at its option, have a right to set-off.\u201d Similarly, the promissory note provided that \u201c[u]pon the breach of any . . . agreement made by [Visco, Inc.] or Robert D. Adams under the [agreement], [Visco Group] shall have a right of set-off against payments due under this Note.\u201d Significantly, the promissory note continued: \u201c[a]ll claims or disputes arising between the parties as to the amount of the set-off, if any, under this section shall be decided by arbitration .... Notice of the demand for arbitration shall be filed in writing ... within thirty (30) days after the dispute has arisen.\u201d\nOn or around 10 April 1997, Visco Group exercised its right to set off damages after contending that Visco, Inc. allegedly breached certain warranties and representations. Visco, Inc. and Adams, however, failed to demand arbitration to decide the set-off claim within the thirty-day period required under-the promissory note. Indeed, Adams did not commence arbitration until 27 October 1997.\nPrior to the commencement of arbitration, defendants moved in District Court, Mecklenburg County under N.C. Gen. Stat. \u00a7 1-567.3 to enjoin Adams from proceeding with arbitration because more than thirty days had passed since the dispute arose. Following a hearing on the matter, the district court judge granted defendants\u2019 motion and permanently enjoined Adams from participating in arbitration over this matter.\nAdams then brought this action in Superior Court, Mecklenburg County seeking moneys allegedly owed under the agreement and promissory note. Thereafter, both Adams and the defendants filed summary judgment motions that were denied. Both parties appealed to this Court.\nIn addressing this appeal, we note the general rule that the denial of a motion for summary judgment is interlocutory and not appeal-able. See Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). The reason for this rule is \u201cto prevent fragmentary, premature and unnecessary appeals by permitting the trial division to have done with a case fully and finally before it is presented to the appellate division.\u201d Id. at 207, 240 S.E.2d at 343. Moreover, it gives the trial court and the parties an opportunity to develop more fully the facts in dispute and to put the merits of the claim in bolder relief than they are now. Id. at 209, 240 S.E.2d at 344.\nAlthough a denial of summary judgment is generally not appeal-able, we will allow for such an appeal when the ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment. See North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 437, 206 S.E.2d 178, 181 (1974). For example, when a motion for summary judgment is made on the basis of claim preclusion, the denial of that motion affects a substantial right and thus entitles the party to an immediate appeal. See Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993).\nIn the case sub judice, both Adams and the defendants are seeking to appeal the denial of their summary judgment motions. Adams, however, has not claimed nor argued that the denial of his motion affected a substantial right. Accordingly, we find his appeal interlocutory and dismiss it.\nThe defendants, on the other hand, contend that their appeal is appropriate because it is based upon claim preclusion. Specifically, the defendants contend that the district court\u2019s earlier decision to permanently enjoin Adams from sending this matter to arbitration precludes Adams\u2019 present suit. We disagree.\n\u201cThe doctrine of claim preclusion precludes a second suit when: (1) the same claim is involved; (2) the suit is between the same parties or those in privity with them; and (3) there was a final judgment on the merits in the earlier action.\u201d Howerton v. Grace Hosp., Inc., 130 N.C. App. 327, 330, 502 S.E.2d 659, 661 (1998). In the case sub judice, although the same parties are involved in this suit as were involved in the prior arbitration litigation, the claims here are different. Significantly, in the earlier case, the only consideration before the trial court was whether Adams\u2019 attempt to bring the defendants into arbitration was untimely. This case, on the other hand, involves a claim by Adams that the defendants defaulted on the promissory note itself. Moreover, the set-off provision contained in the promissory note requires arbitration only when there is a dispute \u201cas to the amount of the set-off\u2019 \u2014 it does not require arbitration when the dispute revolves around whether set off itself is appropriate. Accordingly, this case does not involve an issue of claim preclusion. Therefore, we find that the defendants\u2019 appeal is interlocutory and also warrants dismissal.\nAppeal and Cross-appeal dismissed.\nJudges GREENE and MARTIN concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Robert D. McDonnell, for plaintiff-appellant.",
      "The Bishop Law Firm, RA., by J. Daniel Bishop, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "ROBERT D. ADAMS, Plaintiff-Appellant v. PHILLIP J. SAMUELS and VISCO GROUP, INC., Defendants-Appellees\nNo. COA98-1159\n(Filed 20 July 1999)\n1. Appeal and Error\u2014 appealability \u2014 summary judgment denial\nAn appeal from the denial of a summary judgment was dismissed where appellant did not argue that the denial of his motion affected a substantial right.\n2. Appeal and Error\u2014 appealability \u2014 summary judgment denial \u2014 claim preclusion not involved \u2014 dismissed\nAn appeal from the denial of summary judgment was dismissed where defendants contended that their appeal was based upon claim preclusion based upon an earlier decision to permanently enjoin plaintiff from sending this matter to arbitration. Although the same parties are involved, the claims are different in that the earlier action involved the timeliness of the attempt to arbitrate and this action involved a claim of default on a promissory note.\nAppeal by plaintiff Robert D. Adams and cross-appeal by defendants Phillip J. Samuels and Visco Group, Inc. from judgments entered 9 July 1998 by Judge James U. Downs, in Superior Court, Mecklenburg County. Heard in the Court of Appeals 18 May 1999.\nRobert D. McDonnell, for plaintiff-appellant.\nThe Bishop Law Firm, RA., by J. Daniel Bishop, for defendants-appellees."
  },
  "file_name": "0372-01",
  "first_page_order": 404,
  "last_page_order": 407
}
