An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1467
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
LCA DEVELOPMENT, LLC,
Plaintiff,
v. Pitt County
No. 12 CVS 3376
WMS MANAGEMENT GROUP, LLC,
Defendant.
Appeal by plaintiff from order entered 4 October 2013 by
Judge Alma L. Hinton in Pitt County Superior Court. Heard in
the Court of Appeals 6 May 2014.
Jordan Price Wall Gray Jones & Carlton, by Philip W. Paine,
for plaintiff-appellant.
Lanier, King & Paysour, PLLC, by Steven F. Johnson II, for
defendant-appellee.
HUNTER, Robert C., Judge.
LCA Development, LLC (“plaintiff”) appeals the order
granting WMS Management Group, LLC’s (“defendant’s”) motion for
judgment on the pleadings. On appeal, plaintiff argues that the
trial court erred by concluding that plaintiff breached the
agreement by failing to comply with the default provisions of
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the contract and that defendant was entitled to judgment as a
matter of law.
After careful review, we dismiss plaintiff’s appeal as
interlocutory.
Background
Plaintiff owns two residential apartment complexes in Pitt
County, North Carolina (“the properties”). Defendant is a North
Carolina company that specializes in property management. On or
about 31 December 2011, plaintiff entered into an “Exclusive
Property Management Agreement” (“the agreement”) with defendant.
The agreement provided that defendant would, among other things:
manage the properties; use its “best efforts” to solicit,
secure, and maintain tenants; and collect all rents due. With
regard to default, the agreement, in paragraph 20, specifically
provided that:
If either party defaults in the performance
of any of its obligations hereunder, in
addition to any other remedies provided
herein or by applicable law, the non-
defaulting party shall have the right to
terminate this Agreement, if, within thirty
days after providing the defaulting party
with written notice of the default and the
intent to terminate, the default remains
uncured.
Moreover, the agreement provided that plaintiff would:
Indemnify and hold [defendant] harmless to
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the extent allowable by law from any and all
costs, expenses, attorneys’ fees, suits,
liabilities, damages or claims for damages,
including but not limited to, those . . . in
any way relating to the management of the
Property by Agent or the performance or
exercise of any duty, obligation or
authority set forth herein or hereafter
granted to [defendant], except to the extent
that such may be the result of gross
negligence or willful or intentional
misconduct by [defendant].
Plaintiff claims that defendant failed to collect rents due from
the tenants and failed to use its best efforts to manage the
properties.
On 31 December 2012, plaintiff filed a complaint against
defendant asserting a breach of contract claim. On 25 February
2013, defendant filed an answer, counterclaim, and motion to
dismiss for failure to state a claim upon which relief can be
granted. With regards to its counterclaim, defendant contended
that plaintiff breached its contractual obligations by: (1)
failing to first notify defendant in writing of a default and of
its intent to terminate the agreement; (2) failing to provide
defendant 30 days to cure any default as provided in the
agreement; and (3) failing to indemnify and hold defendant
harmless for conduct not amounting to gross negligence or
willful or intentional misconduct. Plaintiff filed a response
to defendant’s counterclaim admitting that it did not provide
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any written notice of default with notification of its intent to
terminate the agreement nor did it provide defendant 30 days to
cure any default.
On 30 August 2013, defendant filed a motion for judgment on
the pleadings on its breach of contract counterclaim. The
matter came on for hearing on 16 September 2013. The trial
court granted defendant’s motion for judgment on the pleadings.
Specifically, the trial court dismissed plaintiff’s claim for
breach of contract with prejudice and held that plaintiff is
liable to defendant on its counterclaim. Moreover, the trial
court ordered a trial be held to determine the amount of damages
plaintiff is liable to defendant. Before the trial on damages
occurred, plaintiff appealed.
Interlocutory Nature of Appeal
First, it should be noted that plaintiff is appealing an
interlocutory order. “An order is interlocutory if it is made
during the pendency of an action and does not dispose of the
case but requires further action by the trial court in order to
finally determine the entire controversy.” Trivette v. Yount,
__ N.C. App. __, __, 720 S.E.2d 732, 734-35 (2011), affirmed in
part, reversed in part on other grounds, and remanded, 366 N.C.
303, 735 S.E.2d 306 (2012). Here, because the trial court’s
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order did not dispose of the entire case and ordered the amount
of defendant’s damages be determined at a trial, it is an
interlocutory order.1
[I]mmediate appeal of interlocutory
orders and judgments is available in at
least two instances. First, immediate
review is available when the trial court
enters a final judgment as to one or more,
but fewer than all, claims or parties and
certifies there is no just reason for delay.
N.C.G.S. § 1A-1, Rule 54(b) []. . . .
Second, immediate appeal is available from
an interlocutory order or judgment which
affects a “substantial right.”
Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579
(1999) (internal citations omitted). Because the trial court
did not certify its order as immediately appealable pursuant to
Rule 54(b), the burden is on plaintiff to establish that a
substantial right will be lost if the trial court’s order is not
immediately reviewed. Turner v. Norfolk S. Corp., 137 N.C. App.
138, 142, 526 S.E.2d 666, 670 (2000); see also Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d
252, 254 (1994) (“It is not the duty of this Court to construct
arguments for or find support for appellant’s right to appeal
from an interlocutory order; instead, the appellant has the
1
In its brief, defendant claims that the trial court has stayed
the trial on damages pending the appeal. However, this fact
cannot be verified by the record.
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burden of showing this Court that the order deprives the
appellant of a substantial right which would be jeopardized
absent a review prior to a final determination on the merits.”).
Plaintiff has failed to put forth any argument that this Court’s
failure to review the order immediately would deprive it of a
substantial right; in fact, plaintiff’s brief fails to include a
statement of grounds for appellate review or even mention that
the order is interlocutory. Furthermore, even if plaintiff
included an argument that the order affected a substantial
right, this Court has repeatedly held that “[i]t is well settled
that a judgment which determines liability but which leaves
unresolved the amount of damages is interlocutory and cannot
affect a substantial right[.]” Steadman v. Steadman, 148 N.C.
App. 713, 714, 559 S.E.2d 291, 292 (2002); see also Tridyn
Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d
443, 447 (1979) (holding that the trial court’s order granting
summary judgment as to liability but ordering a trial as to the
amount of damages was interlocutory and did not affect a
substantial right). Accordingly, plaintiff is appealing a non-
appealable interlocutory order, and we dismiss the appeal.
Conclusion
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Because the trial court’s order is interlocutory and does
not affect a substantial right, we dismiss plaintiff’s appeal.
DISMISSED.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).