IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-948
Filed: 5 September 2017
Catawba County, No. 13 CVS 1152
JAMES GARDNER and JOAN GARDNER, Plaintiffs,
v.
DOUGLAS W. RINK, GINGER RINK, RINK MEDIA, LLC, and THE RINK GROUP,
INC., Defendants.
Appeal by defendants from orders entered 1 April 2016 by Judge Anna
Wagoner and 26 April 2016 by Judge Robert C. Ervin in Catawba County Superior
Court. Heard in the Court of Appeals 22 March 2017.
Homesley, Gaines & Dudley, LLP, by Christina Clodfelter, for plaintiffs-
appellees.
Law Offices of Matthew K. Rogers, by Matthew K. Rogers, for defendants-
appellants.
BERGER, Judge.
This appeal originated in a dispute over land on which an advertising billboard
had been built. Douglas and Ginger Rink, Rink Media, LLC, and The Rink Group,
Inc. (collectively “Defendants”) appeal from two orders ruling on motions for
summary judgment.
The first order, which was entered on April 1, 2016 by Judge Anna Wagoner
(“April 1 Order”), partially granted and partially denied Defendants’ motion for
GARDNER V. RINK
Opinion of the Court
summary judgment. James and Joan Gardner’s (collectively “Plaintiffs”) unjust
enrichment claim was dismissed, but Defendants’ motion was otherwise denied
because the trial court found genuine issues of material fact that precluded summary
judgment on Plaintiffs’ motion to set aside a lease on the land that is the subject of
this dispute.
The second order, which was entered on April 26, 2016 by Judge Robert C.
Ervin (“April 26 Order”), granted Plaintiffs’ motion for summary judgment.
Plaintiffs’ motion to set aside the lease was granted, the lease was declared void, and
Defendants’ counterclaims for adverse possession, abuse of process, and unfair and
deceptive trade practices were dismissed.
For the reasons set out below, we must vacate the April 26 Order, and dismiss
the remainder of the appeal as interlocutory.
Factual & Procedural Background
Charles and Mark Alexander (collectively “Sellers”) jointly owned 12.7 acres
located in Denver, North Carolina (the “Property”). Charles Alexander partnered
with Douglas Rink to develop and rezone the Property. In November 2002, Sellers
and Douglas Rink made plans for Douglas Rink and his wife, Ginger, to buy the
Property.
Prior to his purchase of the land, Douglas Rink made plans to build an
advertising billboard on Sellers’ Property. Before acquiring any ownership interest
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Opinion of the Court
in the Property, Douglas and Ginger Rink entered into a ground lease agreement
(“Lease”) with The Rink Group, Inc., an entity owned and operated by Douglas and
Ginger Rink. The Lease was recorded on May 14, 2003.
The Rink Group, Inc. was eventually dissolved, and Douglas and Ginger Rink
formed Rink Media, LLC to manage and operate the billboard that had been built on
the Property. Douglas and Ginger Rink did not acquire any ownership interest in the
Property until March 26, 2003, when they purchased the Property from Sellers in a
seller-financed transaction.
Douglas and Ginger Rink defaulted on their payments to Sellers. They
therefore conveyed the property back to Sellers by general warranty deed on
February 11, 2004. The deed made no reference to or reservation for the Lease. The
Sellers then sold the Property to Plaintiffs on October 26, 2004. However, Rink
Media, LLC continued to operate the billboard even after Plaintiffs purchased the
Property.
On May 9, 2013, Plaintiffs filed their initial complaint against Douglas and
Ginger Rink, and The Rink Group, Inc. for breach of contract and unjust enrichment,
and also included a motion to set aside the Lease. The complaint was later amended
to include all Defendants. Defendants filed a motion to dismiss all claims pursuant
to Rule 12 of the North Carolina Rules of Civil Procedure. This motion was granted
as to Plaintiffs’ breach of contract claim, but denied for the two remaining claims.
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Opinion of the Court
On March 17, 2016, Defendants filed a motion for summary judgment seeking
dismissal of Plaintiffs’ claim of unjust enrichment and their motion to set aside the
Lease, as well as a ruling in favor of Defendants’ counterclaims. In the April 1 Order,
the trial court granted Defendants’ motion dismissing Plaintiffs’ claim of unjust
enrichment, but denied Plaintiffs’ motion to set aside the Lease.
Subsequent to the April 1 Order, Plaintiffs filed a motion for summary
judgment on March 23, 2016 seeking to set aside the Lease and dismiss Defendants’
counterclaims. The trial court, albeit a different judge than had ruled on the April 1
Order, granted Plaintiffs’ motion for summary judgment in the April 26 Order.
Defendants timely appeal both the April 1 Order and the April 26 Order.
Analysis
The trial court must grant a motion for summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule
56(c) (2015). “The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact.” Austin Maint. &
Constr., Inc. v. Crowder Constr. Co., 224 N.C. App. 401, 407, 742 S.E.2d 535, 540
(2012) (citation and quotation marks omitted). “A genuine issue of material fact
arises when the facts alleged . . . are of such nature as to affect the result of the
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action.” Id. (citation and quotation marks omitted). If the moving party is the
defendant, and he or she has made the required showing of no genuine fact issue, the
burden shifts to the plaintiff to “produce a forecast of evidence demonstrating specific
facts,” opposed to mere allegations, by which he or she can “establish a prima facie
case at trial.” Id. at 407, 742 S.E.2d at 540 (citation and quotation marks omitted).
An appeal of a trial court’s decision to grant summary judgment is reviewed de novo.
Id. at 408, 742 S.E.2d at 541.
Defendants argue that the trial court erred in the portion of the April 26 Order
that granted Plaintiffs’ summary judgment motion relating to their claim setting
aside the Lease. However, a separate trial court had previously ruled on this same
issue in the April 1 Order. Therefore, the relationship between the two trial court’s
rulings on summary judgment motions must be addressed because it is a
jurisdictional issue, and therefore “can be raised at any time, even for the first time
on appeal and even by a court sua sponte.” Cail v. Cerwin, 185 N.C. App. 176, 181,
648 S.E.2d 510, 514 (2007), disc. review denied, 365 N.C. 75, 705 S.E.2d 743 (2011)
(citation and quotation marks omitted).
It is well-established that no appeal lies from one Superior
Court judge to another; that one Superior Court judge may
not correct another's errors of law; and that ordinarily one
judge may not modify, overrule, or change the judgment of
another Superior Court judge previously made in the same
action.
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Id. (citation and quotation marks omitted). “[W]here one judge denies a motion for
summary judgment, another judge may not reconsider . . . and grant summary
judgment on that same issue.” Id. at 182, 648 S.E.2d at 515 (citation and quotation
marks omitted). A second motion will be appropriate only if different legal issues are
presented than those raised by an earlier motion. Id. at 182, 648 S.E.2d at 514. “[I]t
is immaterial whether a different party brings the second motion for summary
judgment.” Id. (citation omitted).
Here, the first trial court to address a motion for summary judgment granted
Defendants’ motion as to Plaintiffs’ unjust enrichment claim in the April 1 Order.
The trial court further ruled in that same order that there were genuine issues of
material fact relating to Plaintiffs’ motion to set aside the Lease, and therefore denied
their motion on this issue. The second trial court to address a summary judgment
motion in this case subsequently granted Plaintiffs’ motion for summary judgment in
the April 26 Order. This second order set aside the Lease declaring it void, and
dismissed each of Defendants’ counterclaims. The first trial court’s ruling denying
summary judgment on the legal issue of setting aside the Lease precluded the second
trial court from later overruling its decision by granting summary judgment.
Plaintiffs contend that by supporting their motion to set aside the Lease with
different arguments allowed the second trial court to rule on their motion. However,
“the presentation of a new legal issue is distinguishable from the presentation of
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Opinion of the Court
additional evidence, and only when the legal issues differ between the first motion
for summary judgment and a subsequent motion may a trial court hear and rule on
the subsequent motion.” Id. at 184, 648 S.E.2d at 516 (citations, quotation marks,
and brackets omitted). Both parties moved for summary judgment on the same legal
issue; it is irrelevant whether new evidence was introduced. Therefore, the April 26
Order granting Plaintiffs’ motion for summary judgment as to their motion to set
aside the Lease was entered in error and must be vacated, leaving the first trial
court’s order denying Defendant’s motion operative.
“[T]he denial of a motion for summary judgment is interlocutory and not
immediately appealable unless it affects a substantial right.” Id. at 185, 648 S.E.2d
at 517 (citation, quotation marks, and brackets omitted). Here, as appellants,
Defendants failed to argue any substantial right affected by the denial of their
motion. This Court has previously held that
[i]t 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 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.
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994) (citations omitted). Because the portion of the April 26 Order granting
summary judgment to Plaintiffs must be vacated, the April 1 Order denying summary
judgment determines this issue. As the denial of summary judgment is interlocutory,
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and Defendants failed to argue that this order affects any substantial right, we will
not address the remainder of the appeal and dismiss.
Conclusion
Because the trial court’s April 26 Order improperly overruled a prior trial
court’s April 1 Order, the April 26 Order granting summary judgment as to Plaintiffs’
motion to set aside the Lease and declaring the Lease void must be vacated, and the
April 1 Order’s denial of Defendants’ motion is, therefore, operative. Consequently,
because an appeal of the denial of a summary judgment motion is interlocutory, we
must dismiss the remainder of the appeal.
VACATED IN PART, AND DISMISSED IN PART.
Judges CALABRIA and HUNTER, JR. concur.
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