{ "id": 11439388, "name": "CAROLINA PLACE JOINT VENTURE, Plaintiff-appellee v. FLAMERS CHARBURGERS, INC. d/b/a FLAMERS CHARBROILED HAMBURGERS, and F.A. INTERNATIONAL, INC., Defendants-appellants", "name_abbreviation": "Carolina Place Joint Venture v. Flamers Charburgers, Inc.", "decision_date": "2001-08-21", "docket_number": "No. COA00-506", "first_page": "691", "last_page": "696", "citations": [ { "type": "official", "cite": "145 N.C. App. 691" } ], "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": "404 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "183", "parenthetical": "\"[W]e do not address the merits of the plaintiff's argument regarding alleged fraudulent conveyances because she violated N.C. R. App. P. 28(b)(5" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 31", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519379 ], "year": 1991, "pin_cites": [ { "page": "37-38", "parenthetical": "\"[W]e do not address the merits of the plaintiff's argument regarding alleged fraudulent conveyances because she violated N.C. R. App. P. 28(b)(5" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0031-01" ] }, { "cite": "148 S.E. 26", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1929, "pin_cites": [ { "page": "27", "parenthetical": "\"The reservation by the lessee ... of some portion of the term [is] the chief distinction between a sublease and an assignment.\"" } ], "opinion_index": 1 }, { "cite": "197 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627788 ], "year": 1929, "pin_cites": [ { "page": "170", "parenthetical": "\"The reservation by the lessee ... of some portion of the term [is] the chief distinction between a sublease and an assignment.\"" } ], "opinion_index": 1, "case_paths": [ "/nc/197/0168-01" ] }, { "cite": "356 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "915" } ], "opinion_index": 1 }, { "cite": "86 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124806 ], "year": 1987, "pin_cites": [ { "page": "162" } ], "opinion_index": 1, "case_paths": [ "/nc-app/86/0157-01" ] }, { "cite": "413 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "321", "parenthetical": "citing James A. Webster, Jr., Webster's Real Estate Law in North Carolina \u00a7 241 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 3d ed. 1988" }, { "page": "322", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "105 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523367 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "388", "parenthetical": "citing James A. Webster, Jr., Webster's Real Estate Law in North Carolina \u00a7 241 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 3d ed. 1988" }, { "page": "389" } ], "opinion_index": 1, "case_paths": [ "/nc-app/105/0384-01" ] }, { "cite": "266 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 1 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/300/0247-01" ] } ], "analysis": { "cardinality": 532, "char_count": 10458, "ocr_confidence": 0.777, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24040494252753733 }, "sha256": "28ea7ff594d18f9b66b93645c729ce9cf347f1ddcd1713a08887c239b7e3042a", "simhash": "1:3222cae8f7467444", "word_count": 1695 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs.", "Judge TIMMONS-GOODSON concurs in part and dissents in part with separate opinion." ], "parties": [ "CAROLINA PLACE JOINT VENTURE, Plaintiff-appellee v. FLAMERS CHARBURGERS, INC. d/b/a FLAMERS CHARBROILED HAMBURGERS, and F.A. INTERNATIONAL, INC., Defendants-appellants" ], "opinions": [ { "text": "BRYANT, Judge.\nOn 21 January 1999, plaintiff filed a complaint demanding judgment for all rent, interest and fees owed from defendants\u2019 default on a lease agreement between plaintiff and defendants for certain commercial property; attorney fees incurred in enforcement of the lease; and such other relief as the court deemed just and proper. This matter came for hearing before the Honorable Jesse B. Caldwell, Judge Presiding, during the 10 January 2000 Civil Session of Superior Court for Mecklenburg County.\nAn order and judgment was entered on 20 January 2000 granting plaintiffs motion for summary judgment pursuant to N.C. R. Civ. P. 56 and awarding plaintiff damages for unpaid rent, unpaid double rent and other costs arising from defendants\u2019 default on the lease agreement. The defendants filed notices of appeal on 16 February 2000.\nPlaintiff seeks to dismiss defendants\u2019 appeals on two grounds: 1) defendant Flamers Charburgers, Inc. d/b/a Flamers Charbroiled Hamburgers (Flamers) did not file a brief on appeal, and 2) defendant F.A. International, Inc. (FAI) allegedly filed its brief late and failed to reference and departed from its assignments of error in its appellate brief. We grant plaintiff\u2019s motion and dismiss this appeal.\nN.C. R. App. P. 13(c) (2001) states, \u201c[i]f an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court\u2019s own initiative.\u201d The facts indicate that in addition to defendant Flamers failing to submit an appellate brief, defendant FAI submitted its appellate brief after the proper deadline. See N.C. R. App. P. 13(a)(1) (2001) (stating that an appellant has \u201c30 days after the clerk of the appellate court has mailed the printed record to the parties\u201d to file the appellate brief). In the case sub judice, the Clerk of the Court of Appeals mailed the printed record to the parties on 23 May 2000. Defendant FAI did not file its brief until 27 June 2000 \u2014 several days after the proper deadline. Therefore, we dismiss defendants\u2019 appeal.\nFurther, defendant FAI failed to reference the assignments of error in its appellate brief in violation of N.C. R. App. P. 28(b)(5). N.C. R. App. P. 28(b)(5) (2001) (\u201cImmediately following each question shall be a reference to the assignments of error pertinent to the question . . . [assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated . . . will be taken as abandoned.\u201d). This failure alone subjects defendant FAI\u2019s appeal to dismissal as FAI is deemed to have abandoned these arguments. See Hines v. Arnold, 103 N.C. App. 31, 37-38, 404 S.E.2d 179, 183 (1991) (\u201c[W]e do not address the merits of the plaintiff\u2019s argument regarding alleged fraudulent conveyances because she violated N.C. R. App. P. 28(b)(5) in that she failed to reference in her brief the assignments of error supporting the argument. This part of the plaintiff\u2019s appeal'is dismissed.\u201d (citation omitted)).\nFor all the reasons stated above, we dismiss defendants\u2019 appeal.\nDISMISSED.\nJudge GREENE concurs.\nJudge TIMMONS-GOODSON concurs in part and dissents in part with separate opinion.", "type": "majority", "author": "BRYANT, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\nconcurring in part, dissenting in part.\nI vote to exercise our discretion under Rule 2 and review the issue of the sublease on the merits. The two violations of our rules are minor and no prejudice has resulted to any party. I agree with the majority concerning the trial court\u2019s ruling granting summary judgment in favor of plaintiff, Carolina Place Joint Venture (\u201cCarolina Place\u201d), and awarding damages against defendant, Flamers Charburgers, Inc. (\u201cFlamers\u201d). However, I respectfully dissent from the order of the trial court granting summary judgment in favor of Carolina Place against third-party defendant, F.A. International (\u201cFAI\u201d). Based on the merits, the trial court should have granted summary judgment in favor of FAI.\nCarolina Place instituted this action against Flamers and FAI seeking all past and future rent owed under the lease. Flamers entered into a ten-year lease with landlord, Carolina Place, for space in the food court in a Charlotte mall. The lease term began on 1 August 1991 and was set to expire on 1 August 2001. FAI was not a party to the original lease. Flamers sublet the space to FAI through a sublease which began 20 September 1994 and was set to expire 7 March 2001.\nThe original lease between Carolina Place and Flamers provided that in the event that Carolina Place terminated Flamers\u2019 right to possession, but not the lease, Flamers would be held liable for 1) all past-due rent; 2) remaining rent due under the lease until the space was re-let; 3) attorney\u2019s fees and expenses incurred by Carolina Place in regaining possession; 4) all costs to re-let; 5) \u201cdouble-rent\u201d for any holdover period during which Flamers remained in possession after Carolina Place terminated such possession.\nCarolina Place filed an action in summary ejectment against Flamers and FAI for failure to comply with certain requirements in the lease related to the maintenance of the store, and the court awarded possession of the premises to Carolina Place on 10 June 1998. FAI remained in possession until 30 June 1998, continued to pay rent until July, but did not pay double-rent.\nCarolina Place filed the present action in March 1999 and filed a motion for summary judgment in December 1999. The trial court granted the motion in favor of Carolina Place and held Flamers and FAI jointly and severally liable for $214,520.00 in damages. This amount included unpaid rent, unpaid holdover double-rent and Carolina Place\u2019s cost to re-let the premises.\nSummary judgment is to be granted when there is no genuine issue of material fact and any party is entitled to judgment as a matter of law. Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980). In order to determine whether a party was entitled to a judgment as a matter of law, we must review the merits.\nThe dispositive issue in this case was whether an agreement in which the tenant transferred its interest in the leased premises, reserving some interest unto itself before expiration of the original lease, was an assignment.\n\u201c[O]ur courts have adopted the traditional \u2018bright line\u2019 test for determining whether a conveyance by a tenant of leased premises is an assignment or a sublease. Under this test, a conveyance is an assignment if the tenant conveys his \u2018entire interest in the premises, without retaining any reversionary interest in the term itself.\u2019\u201d Northside Station Associates Partnership v. Maddry, 105 N.C. App. 384, 388, 413 S.E.2d 319, 321 (1992) (citing James A. Webster, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 241 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 3d ed. 1988). \u201cA sublease, on the other hand, is a conveyance in which the tenant retains a reversion in some portion of the original lease term, however short.\u201d Id.) see also Neal v. Craig Brown, Inc., 86 N.C. App. 157, 162, 356 S.E.2d 912, 915 (1987); J.D. Cornell Millinery Co. v. Little-Long Co., 197 N.C. 168, 170, 148 S.E. 26, 27 (1929) (\u201cThe reservation by the lessee ... of some portion of the term [is] the chief distinction between a sublease and an assignment.\u201d). \u201cIf the conveyance is an assignment, \u2018privity of estate\u2019 is created between the original lessor and the assignee with regard to lease covenants that run with the land, and the original lessor has a right of action directly against the assignee. The original lessor has no such right against a sublessee.\u201d Northside Station Associates Partnership, 105 N.C. App. at 389, 413 S.E.2d at 322 (emphasis added).\nCarolina Place\u2019s lease signed with Flamers and the subsequent lease Flamers signed with FAI, included as exhibits with Carolina Place\u2019s motion for summary judgment, reveal that the subsequent lease was to expire 7 March 2001 and the original lease was to expire 1 August 2001. Thus, Flamers retained four months reversionary interest in the term of the lease. Because Flamers did not convey its entire interest in the leased premises, its subsequent lease agreement with FAI constituted a sublease and not an assignment. Therefore, no privity of estate existed between Carolina Place and FAI, allowing Carolina Place no right to assert a direct claim against FAI based on the provisions of the lease.\nFAI, under the theory of joint and several liability, may become obligated to pay the entire damage amount, although Flamers is the lawfully liable party. Moreover, Flamers has the remedy of recovering from FAI damages it owes Carolina Place. As sublessor and sublessee, privity of estate exists between FAI and Flamers through their agreement. Flamers may, therefore, assert a direct claim against FAI.\nBased on the foregoing, I respectfully dissent from the trial court\u2019s ruling granting summary judgment against FAI.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "No brief filed for defendant-appellant Flamers Charburgers, Inc.", "Parker, Poe, Adams & Bernstein L.L.P., by John W. Francisco, for defendant-appellant F.A. International." ], "corrections": "", "head_matter": "CAROLINA PLACE JOINT VENTURE, Plaintiff-appellee v. FLAMERS CHARBURGERS, INC. d/b/a FLAMERS CHARBROILED HAMBURGERS, and F.A. INTERNATIONAL, INC., Defendants-appellants\nNo. COA00-506\n(Filed 21 August 2001)\nAppeal and Error\u2014 dismissal of appeal \u2014 failure to timely file brief \u2014 failure to reference assignments of error\nDefendants\u2019 appeal from an order and judgment granting plaintiff\u2019s motion for summary judgment under N.C.G.S. \u00a7 1A-1, Rule 56 and awarding plaintiff damages for unpaid rent, unpaid double rent, and other costs arising from defendants\u2019 default on the pertinent lease agreement is dismissed, because: (1) one defendant failed to file an appellate brief and the other defendant submitted its brief after the proper deadline in violation of N.C. R. App. R 13(c); and (2) the defendant filing the late brief failed to reference the assignments of error as required by N.C. R. App. P. 28(b)(5).\nJudge Timmons-Goodson concurring in part and dissenting in part.\nAppeal by defendants from order and judgment entered 20 January 2000 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 June 2001.\nNo brief filed for defendant-appellant Flamers Charburgers, Inc.\nParker, Poe, Adams & Bernstein L.L.P., by John W. Francisco, for defendant-appellant F.A. International.\n. By order entered 19 January 2001 the Court allowed cases COA00-506, COA00-745, and COA00-1231 to be consolidated for purposes of hearing only. Companion cases COA00-745 and COA00-1231 have been consolidated for decision in a separate opinion." }, "file_name": "0691-01", "first_page_order": 721, "last_page_order": 726 }