{
  "id": 8526720,
  "name": "THE T'AI COMPANY v. MARKET SQUARE LIMITED PARTNERSHIP, PAT WALTERS and ALBERT HAKIMIAN",
  "name_abbreviation": "T'ai Co. v. Market Square Ltd. Partnership",
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    "judges": [
      "Judges Orr and Smith concur."
    ],
    "parties": [
      "THE T\u2019AI COMPANY v. MARKET SQUARE LIMITED PARTNERSHIP, PAT WALTERS and ALBERT HAKIMIAN"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nPlaintiff sued defendants for compensatory and punitive damages alleging breach of contract, wrongful interference with contract, fraud, conversion and unfair trade practices. Defendants, Market Square Limited Partnership and Pat Walters, denied these claims and counterclaimed for attorney\u2019s fees pursuant to N.C.G.S. Sec. 6-21.5 (1986) and N.C.G.S. Sec. 75-16.1(2) (1985) alleging plaintiffs claims were frivolous, malicious, and without merit.\nDefault was entered against defendant, Albert Hakimian, as he had failed to plead in response to the complaint. In response to a motion filed by defendants, Market Square Limited Partnership and Pat Walters, the trial court granted summary judgment in favor of defendants and dismissed the complaint. Plaintiff appeals.\nThe sole issue before this court is whether summary judgment on the complaint is appealable before the counterclaim for attorney\u2019s fees has been adjudicated by the trial court.\nNorth Carolina General Statute Section 7A-27(d) provides for appeal from an interlocutory order or judgment when the action or proceeding \u201c(1) Affects a substantial right, or (2) In effect determines the action and prevents a judgment from which appeal might be taken, or (3) Discontinues the action, or (4) Grants or refuses a new trial . . . .\u201d N.C.G.S. Sec. 7A-27(d) (1986). Compare Section 7A-27(d) with Section l-277(a) (1983) (allowing appeal of any order or determination meeting identical four criteria of Section 7A-27(d)). As it is clear that Sections (2), (3), and (4), are not here applicable, we need only determine if the interlocutory order involved \u201caffects a substantial right.\u201d \u201cWith respect to those interlocutory orders which allegedly do affect a substantial right, our Supreme Court has additionally long required that the interlocutory \u2018ruling or order deprive . . . the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment. \u2019 \u201d J. & B. Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5, 362 S.E. 2d 812, 815 (1987) (quoting Waters v. Qualified Personnel, Inc., 294 N.C. 200, 207, 240 S.E. 2d 338, 343 (1978)). An interlocutory order is one \u201cmade during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Slurry, 88 N.C. App. at 4, 362 S.E. 2d at 814-15 (quoting Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E. 2d 337, 381, reh\u2019g denied, 232 N.C. 744, 59 S.E. 2d 429 (1950)). Here, as the counterclaim for attorney\u2019s fees has not been adjudicated by the trial court, the summary judgment on the complaint is interlocutory.\nAn interlocutory order \u201caffects a substantial right\u201d so that it is appealable under N.C.G.S. Sec. l-277(a) and N.C.G.S. Sec. 7A-27(d)(l) if the right affected is \u201csubstantial\u201d and the right will \u201cbe lost, prejudiced, or be less than adequately protected\u201d if the order is not reviewed before final judgment. Slurry, 88 N.C. App. at 5, 362 S.E. 2d at 815. See Waters, 294 N.C. at 207, 240 S.E. 2d at 343.\nThe \u201csubstantial right\u201d most often addressed is the right to avoid two separate trials on the same issues. See Slurry, 88 N.C. App. at 7, 362 S.E. 2d at 816 (the possibility Of undergoing a second trial affects a substantial right only when the same issues are present in both trials); Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E. 2d 593, 596 (1982) (possibility of second trial affects substantial right if presence of same \u201cissue\u201d in second trial creates possibility party will be prejudiced by different juries rendering inconsistent verdicts on same issue); Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E. 2d 405, 408-09 (1982) (where summary judgment allowed for fewer than all defendants, order was ap-pealable since possibility of inconsistent verdict in other trials on same issue affected substantial right). Avoiding two separate trials on the same issues is \u201ca substantial right\u201d because of the possibility of inconsistent verdicts in the two proceedings. Slurry, 88 N.C. App. at 9, 362 S.E. 2d at 817. However, \u201cthere is ordinarily no possibility of inconsistent verdicts or other lasting prejudice where trial of defendant\u2019s counterclaim before appeal will not determine any issues controlling the potential trial of plaintiffs claims after appeal.\u201d Slurry, 88 N.C. App. at 8, 362 S.E. 2d at 817. Here, the disposition of the issue raised in the counterclaim is for the trial judge, not the jury, and recovery is permitted on the counterclaim only if defendants prevail as to plaintiffs complaint. N.C.G.S. Sec. 75-16.1(2) (if party instituting the complaint \u201cknew, or should have known, the action was frivolous and malicious,\u201d the trial judge may allow a reasonable attorney fee to the attorney representing the prevailing party); N.C.G.S. Sec. 6-21.5 (upon motion of prevailing party, the court may award a reasonable attorney\u2019s fee to the prevailing party if there was a \u201ccomplete absence of a justiciable issue of either law or fact raised by the losing party in any pleading\u201d). There is no possibility of inconsistent results in the complaint and counterclaim because an award for this counterclaim can only be granted if the defendants are the prevailing parties in the plaintiffs action. Therefore, as the parties have not addressed any other substantial right which might be affected, we conclude that no substantial right is involved which will be \u201clost, prejudiced, or less than adequately protected\u201d if we do not review this appeal before final judgment. This is consistent with the purpose behind the statutes governing appellate procedure which is to \u201cprevent 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.\u201d Waters, 294 N.C. at 207, 240 S.E. 2d at 343.\nAccordingly, the plaintiffs exception to the entry of the summary judgment on the complaint adequately and without prejudice preserves its appeal which can be perfected after the trial court on remand has ruled on the defendant\u2019s request for attorney\u2019s fees as asserted in the counterclaim.\nAppeal dismissed.\nJudges Orr and Smith concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Stern, Graham & Klepfer, by James W. Miles, Jr., for plaintiff-appellant.",
      "Wyatt, Early, Harris, Wheeler & Hauser, by Frank B. Wyatt and James R. Hundley, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "THE T\u2019AI COMPANY v. MARKET SQUARE LIMITED PARTNERSHIP, PAT WALTERS and ALBERT HAKIMIAN\nNo. 8818SC337\n(Filed 6 December 1988)\nAppeal and Error 8 6.2\u2014 appeal from summary judgment order \u2014 claims not determined-appeal from interlocutory order not affecting substantial right\nIn an action for breach of contract, wrongful interference with contract, fraud, conversion, and unfair trade practices where defendants counterclaimed for attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-21.5 and N.C.G.S. \u00a7 75-16.1(2) alleging plaintiffs claims were frivolous, malicious, and without merit, the trial court\u2019s entry of summary judgment for defendants on plaintiffs claim was not appealable before the counterclaim for attorney\u2019s fees had been adjudicated, since the summary judgment order was interlocutory and did not affect a substantial right. N.C.G.S. \u00a7\u00a7 l-277(a), 7A-27(d).\nAPPEAL by plaintiff from Rousseau (Julius A.), Judge. Judgment entered 30 November 1987 in Superior Court, Guilford County. Heard in the Court of Appeals 4 October 1988.\nStern, Graham & Klepfer, by James W. Miles, Jr., for plaintiff-appellant.\nWyatt, Early, Harris, Wheeler & Hauser, by Frank B. Wyatt and James R. Hundley, for defendant-appellees."
  },
  "file_name": "0234-01",
  "first_page_order": 264,
  "last_page_order": 267
}
