Wolfe v. Villines

TYSON, Judge

dissenting.

The majority’s opinion reverses the trial court’s grant of partial summary judgment in plaintiff’s favor and holds genuine issues of material fact exist concerning: (1) whether the Offer is void for latent ambiguities with the property description; and (2) which parcel should be conveyed. This appeal is interlocutory and defendants failed to comply with the North Carolina Rules of Appellate Procedure and should be dismissed. I respectfully dissent.

I. Interlocutory Appeals

Interlocutory appeals are those “ ‘made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.’ ” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)); accord Veazey v. Durham, 231 N.C. 357, 362-63, 57 S.E.2d 377, 381-82, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). “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.” Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). In addition, “[generally, orders denying motions for summary judgment are not appealable.” Hill v. Smith, 38 N.C. App. 625, 626, 248 S.E.2d 455, 456 (1978); N.C. Gen. Stat. § 1-277 (2003).

It is undisputed that the 11 December 2003 judgment from which defendants appeal is interlocutory because it was a “Partial Summary Judgment” that partially granted plaintiff’s motion for summary judgment, denied defendants’ motion for summary judgment, and did not dispose of the entire case. See Carriker, 350 N.C. at 73, 511 S.E.2d at 4. The trial court specifically ordered that it “shall retain jurisdiction for the purpose of determining what damages, if any, . . . [are] appropriate ...” See Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (an order is interlocutory when issues remain and require further adjudication before a final decree is issued). Here, there is no risk of inconsistent verdicts to trigger a preemptive review *491by this Court. CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999) (“the issue of liability has been determined, [and] the only remaining issue is that of damages and there is no danger of inconsistent verdicts”); Schuch v. Hoke, 82 N.C. App. 445, 446, 346 S.E.2d 313, 314 (1986) (“an order granting [a] motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, [is] an interlocutory order not subject to immediate appeal”) (citing Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d 443, 448 (1979)).

A. Appellate Review of Interlocutory Judgments

Generally, there is no right of immediate appeal from an interlocutory judgment. Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). An interlocutory order may only be considered on appeal where either: (1) certification by the trial court for immediate review under N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); or (2) “a substantial right” of the appellant is affected. Tinch v. Video Industrial Services, 347 N.C. 380, 381, 493 S.E.2d 426, 427 (1997) (citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)); N.C. Gen. Stat. § 1-277(a) (2003); N.C. Gen. Stat. § 7A-27(d) (2003). Here, the trial court did not certify its partial summary judgment “for immediate review” under Rule 54(b) and defendants have failed to show “a substantial right” that will be lost absent immediate review. See Watts v. Slough, 163 N.C. App. 69, 72, 592 S.E.2d 274, 276 (2004) (interlocutory appeal dismissed due to the trial court not certifying its order under Rule 54(b) and the appellant’s failure to assert a substantial right that would be adversely affected without immediate review).

1. Rules of Appellate Procedure

Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure requires the appellant’s brief to include a “statement of the grounds for appellate review.” N.C.R. App. P. 28(b)(4) (2004); see Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 105-06, 493 S.E.2d 797, 800 (1997). If the appeal is interlocutory, the “statement of the grounds” must contain sufficient facts and argument to support appellate review on the grounds that the challenged judgment either affects a substantial right, or was certified by the trial court for immediate appellate review. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). It is the appellant’s duty to provide this Court the grounds to warrant appellate review. Id.

*492Defendants neither included a “statement of the grounds for appellate review” nor addressed the interlocutory nature of their appeal. Further, defendants do not assert in their arguments any substantial rights that will be adversely affected if this Court does not immediately review the trial court’s order.

“Rules of Appellate Procedure are mandatory and failure to observe them is grounds for dismissal of the appeal.” State v. Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780 (1982), cert. denied, - N.C. -, 342 S.E.2d 907 (1986). This appeal should be dismissed due to both its interlocutory nature and defendants’ failure to assert the substantial rights that will be adversely affected without this Court’s immediate review in violation of the North Carolina Rules of Appellate Procedure.

II. Rule 2

The majority’s opinion agrees the appeal is interlocutory and that defendants failed to comply with the appellate rules. Yet, it invokes Rule 2 of the North Carolina Rules of Appellate Procedure to purportedly review the merits of defendants’ claims. Rule 2 states:

To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon the application of a party or upon its own initiative, and may order proceedings in accordance with its directions.

N.C.R. App. P. 2 (2004).

Our Supreme Court stated in Steingress v. Steingress that “Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances." 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (emphasis supplied) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)). This Court has repeatedly held that “ ‘there is no basis under Appellate Rule 2 upon which we should waive plaintiff’s violations of Appellate Rules ....’” Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms v. Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985)).

*493My review of the entire record fails to disclose any “exceptional circumstances,” “significant issues,” or “manifest injustice” to warrant suspension of the Appellate Rules. Our precedents do not allow use of Rule 2 to reach the merits of this appeal. I vote to dismiss.

III. Property Description

I also disagree with the majority’s holding that since the survey was never completed that genuine issues of fact exist: (1) concerning which of the parcels the parties intended to convey; and (2) whether the Offer is potentially void for the latently ambiguous property description.

In Kidd v. Early, our Supreme Court determined that a property description that references a future survey satisfies the Statute of Frauds. 289 N.C. 343, 222 S.E.2d 392 (1976); see also N.C. Gen. Stat. § 22-2 (2003). The property description included in the Offer is latently ambiguous, requiring parol evidence to specify its precise location. See Bradshaw v. McElroy, 62 N.C. App. 515, 516, 302 S.E.2d 908, 910 (1983) (citing Lane v. Coe, 262 N.C. 8, 13, 136 S.E.2d 269, 273 (1964)).

Defendants failed to allow the surveyor to complete the survey to remove the latent ambiguity and make the property description definite. Kidd, 289 N.C. at 357, 222 S.E.2d at 402. Here, Hamlett’s survey divulged the existence of buildings located on the property to be conveyed during initial field work. Upon reporting this discovery to Broker Bowes, Hamlett was instructed to remove the improvements from the parcel to be conveyed and move the northern boundary line. The result was a preliminary survey including three possible tracts of land, ranging from 15.9 to 20.8 acres. Defendants wrongly refused Hamlett access to the property to complete the final survey, forcing plaintiff to instigate this action and seek specific performance, an equitable remedy.

Based on the pleadings, exhibits, affidavits, memoranda of law, admitted testimony, and oral arguments, the trial court ruled

there is no genuine issue as to any material facts and that the Plaintiff is entitled to specific performance of the December 6, 2001 Offer to Purchase and Contract entered into between the Plaintiff and the Defendants. It is further determined that as a matter of equity, the contract shall be reformed to reflect that the parcel to be conveyed pursuant to the terms of the contract is *494that 15.9 [+-] acres excluding the 40,000 square foot outparcel containing the house and out building ....

(Emphasis supplied). The trial court, sitting as a Court of Equity, in its discretion and in light of all the evidence, reformed the contract and ordered defendants to convey the smallest of the three possible parcels, 15.9 acres, despite the Offer calling for a conveyance of twenty-five acres, more or less. It further ordered defendants to provide Hamlett access to the property to finalize the survey of the 15.9 acre tract.

It is apparent that the potential issues of material fact that the majority’s opinion cites in reversing the trial court’s order result from defendants’ breach of the Offer. The majority’s opinion acknowledges that “[t]he statute of frauds was designed to guard against fraudulent claims supported by perjured testimony; it was not meant to be used by defendants to evade an obligation based on a contract fairly and admittedly made.” House v. Stokes, 66 N.C. App. 636, 641, 311 S.E.2d 671, 675 (1984) (citation omitted). However, its holding allows defendants to further unfairly delay plaintiff by approving their breach of the Offer and prolonging the closing of this matter through their improper actions. “ ‘[A] court of equity may decree specific performance, when it would be a virtual fraud to allow the defendant to interpose the statute as a defense and at the same time secure to himself the benefit of what has been done in performance.’ ” Ebert v. Disher, 216 N.C. 36, 48, 3 S.E.2d 301, 309 (quotation omitted), cert. denied, 216 N.C. 546, 5 S.E.2d 716 (1939).

Defendants do not assert and my review of the record does not indicate the trial court abused its discretion by sitting as a court of equity, reforming the contract, and ordering specific performance. See Harris v. Harris, 50 N.C. App. 305, 313, 274 S.E.2d 489, 493 (this Court’s review of a trial court’s equitable remedy is under the abuse of discretion standard), appeal dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981).

The majority’s opinion cites Dettor v. BHI Property Co. as authority to hold that genuine issues of material fact preclude a trial court’s grant of partial summary judgment. 324 N.C. 518, 379 S.E.2d 581 (1989). Dettor is readily distinguishable from the case at bar. There, our Supreme Court determined the dispositive issue concerned whether the parties intended a per-acre sale of land or a contract for approximately twelve acres. Id. at 519, 379 S.E.2d at 851-52. This *495issue resulted from a third-party surveyor’s miscalculation of the acreage to be conveyed. Id. at 520, 379 S.E.2d at 852. Based upon each party presenting “some plausible evidence tending to support its interpretation of the contract,” the Court held the contradictions “[a]t best . . . raise a material question of fact.” Id. at 522-23, 379 S.E.2d at 853 (emphasis supplied). The Court concluded that such a determination should be made by the fact finder. Id.

The materiality of the issue of fact in Dettor is its effect on the purchase price. See Bank v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976) (issues are material if the facts alleged would affect the result of the action in the non-movant’s favor). Under the plaintiff/seller’s “per-acre sale” argument in Dettor, the purchase price should have been increased relative to the difference in acreage conveyed versus the “+/- 12 acres” contracted for. 324 N.C. at 521-22, 379 S.E.2d at 853. The defendant/purchaser in Dettor argued it did not owe additional money because the contract was “for approximately twelve acres and it never anticipated that the tract in question might contain substantially more than twelve acres.” 324 N.C. at 522, 379 S.E.2d at 853. The outcome of Dettor raised serious financial ramifications to the losing party based on how the terms of the contract were interpreted. That outcome is the materiality of the issue of fact in Dettor.

Here, the parties contracted to convey “+ or - 25 ac. to be determined by a surveyor for property behind Mr. Wolfe’s Property, to run to the first field” at “$2200.00 Per Ac.” The potential issues of fact the majority’s opinion cites do not result from the possibility of the appealing party not receiving the benefit of the bargain as was intended by the Offer. Defendants are receiving the full purchase price of the Offer. In addition, they are conveying to plaintiff over nine acres less than the acreage required by the terms of the Offer. The trial court’s order benefits defendants, not plaintiff.

The materiality of issues of fact in Dettor is not present here, as defendants are receiving everything they contracted for, and more. Plaintiff (the purchaser) did not appeal and has not complained about the trial court’s decision to convey to him over nine acres less than the Offer called for.

Under the majority’s holding, on remand, defendants stand to lose more than the 15.9 acre tract if the future finder of fact determines the parties intended a larger parcel to be conveyed by the *496Offer. In addition, defendants’ motives in pursuing this appeal are questionable as record evidence shows another outstanding third-party Offer to purchase defendants’ remaining acreage is pending, contingent upon the outcome of this matter.

IV. Time for Closing

The majority’s opinion also states the trial court properly found that time was not of the essence for the Offer. That discussion is also unnecessary as this appeal is interlocutory and defendants failed to satisfy the rules of appellate procedure. This assignment of error is also not properly before this Court and should be dismissed.

V. Conclusion

The trial court, sitting as a court of equity and in its discretion, properly ordered reformation and specific performance of the Offer. Defendants’ improper breach of the Offer and refusal to allow the surveyor to complete his work created any potential issues of fact. This Court should not allow defendants’ wrongful conduct to delay or avoid their contractual obligations.

I vote to dismiss this appeal due to: (1) its interlocutory nature; (2) no trial court certification; (3) the absence of a substantial right; and (4) defendants’ failure to abide by the North Carolina Rules of Appellate Procedure. Also, our precedents do not allow Rule 2 to be used to excuse defendants’ failure to comply with the North Carolina Rules of Appellate Procedure. See Smith v. R.R., 114 N.C. 729, 749-50, 19 S.E. 863, 869 (1894) (warning that, “Looseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a kind of authority which the courts, without reference to true principle, are constrained to follow.”). I respectfully dissent.