Opinion
No. COA10-698
Filed 5 April 2011 This case not for publication
Appeal by defendants from order entered 1 October 2009 by Judge Alma L. Hinton in Dare County Superior Court. Heard in the Court of Appeals 1 December 2010.
Bradford J. Lingg, for plaintiffs-appellees. Rose Harrison Gilreath, P.C., by James R. Gilreath, Jr. and Dennis C. Rose, for defendants-appellants.
Dare County No. 07 CVS 20.
Where the trial court only decided the issue of liability and left the issue of damages to be decided at a later date, the trial court's North Carolina Rule of Civil Procedure 54(b) certification for immediate appeal was improper and this appeal is dismissed.
I. Factual and Procedural History
Defendant John C. Sheetz, Sr. ("Sheetz") was the president and sole shareholder of GCZ, Inc. ("GCZ"), Bayside Car Rental, Inc. ("Bayside Car"), and Bayside Realty, Inc. ("Bayside Realty"). Bayside Realty owned real property located at 105 Palmetto Street and 100 East Bickett Street in Kill Devil Hills, North Carolina ("the Property") upon which GCZ, Bayside Car, and Bayside Realty operated taxi services. On 13 May 1996, Sheetz received a letter from Donna Elliot ("Elliot"), Zoning Administrator of the Town of Kill Devil Hills, North Carolina ("the Town"), stating that "an unapproved business [was] being operated from a single family dwelling at 201 Bickett Street and vehicles being stored at the corner of Palmetto and 158 By-Pass," and that a site plan needed to be submitted to the Town for approval. References to "201 Bickett Street" in the 13 May 1996 letter and subsequent letters sent by Elliot to Sheetz are typographical errors and should have referenced "100 E. Bickett Street." Elliot sent Sheetz another letter on 2 August 1996 explaining "that this business must cease and desist until approval has been obtained from the Planning Board and Board of Commissioners." Nearly eight years later, a similar letter was sent on 21 July 2004 by Elliot to Sheetz. On 17 August 2004, Sheetz submitted three site plans for the Property, but the "submittal [did] not meet the requirements for site plan review." On 28 September 2004, Elliot sent a letter to Sheetz informing him that the "violation ha[d] been turned over to the Town Attorney." Following the communications between Elliot and Sheetz in 2004, the dispatch and other operations of the various businesses owned by Sheetz were relocated to Seagate North Shopping Center, but the businesses continued to park vehicles on the Property.
Jay K. Engell ("Engell") is the managing member of Outer Banks Breeze, LLC ("Breeze"). On 24 May 2005, Engell as the managing member of Breeze entered into an agreement with Bayside Realty and Sheetz to purchase the Property. That same day Engell entered into an agreement with Sheetz to purchase the assets of Bayside Car. On 7 July 2005, Engell purchased from Sheetz all of the capital stock in CGZ and Bayside Car. The agreement for purchase and sale of the Property, the agreement to purchase Bayside Car, and the two stock purchase agreements all contained warranties and representations that the use of the Property for the operation of the various businesses was lawful and that there were no threatened legal proceedings concerning the use of the Property.
On 24 July 2008, an order was entered against Breeze, CGZ, and Bayside Car in favor of the Town finding that Breeze, CGZ, and Bayside Car were:
enjoined from the unlawful use of [the Property] included but not limited to the parking or storage of commercial vehicles owned or operated by Bayside Car Rental Inc. d/b/a "Bayside Cab" or CGZ Inc. d/b/a The Connection on the vacant real property located on the south east corner of U.S. 158 and Palmetto Street; 100 Bickett Street; 102 Bickett Street; 2201 N. Croatan Highway and 105 East Palmetto Street, Kill Devil Hills, North Carolina, or from any other unlawful use or illegal operation of a business.
On 14 March 2007, Engell, Breeze, CGZ, and Bayside Car (collectively "plaintiffs") filed an amended complaint against Bayside Realty and Sheetz (collectively "defendants") alleging fraud, unfair and deceptive trade practices, breach of warranty, breach of contract, seeking indemnification, and seeking offset of the amount of any award by the court against the portion of the purchase price financed by defendants. On 1 October 2009, the trial court entered partial summary judgment in favor of plaintiffs on their claims for fraud, unfair and deceptive trade practices, breach of warranty, and indemnification, and certified the order for appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. Defendants appeal.
II. Motion to Dismiss
On 17 June 2010, plaintiffs filed a motion to dismiss the defendants' appeal. We grant this motion.
This case is controlled by this Court's decision in CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 517 S.E.2d 151 (1999). In CBP, the trial court granted the plaintiff summary judgment on the issue of liability and certified the case for immediate appeal pursuant to Rule 54(b) leaving the issue of damages to be decided at a later date. Id. As this Court explained in CBP, an interlocutory order is immediately appealable pursuant to Rule 54(b) when "the order is final as to some but not all the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b)." Id. at 171, 517 S.E.2d at 153 (citations omitted).
However, a Rule 54(b) certification is effective to certify an otherwise interlocutory appeal only if the trial court has entered a final judgment with regard to a party or a claim in a case which involves multiple parties or multiple claims. See DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583, 500 S.E.2d 666 (1998). Rule 54(b) certification of an appeal is reviewable by this Court "because the trial court's denomination of its decree `a final . . . judgment does not make it so,' if it is not such a judgment." First Atlantic Management Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) (quoting Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979)) (citations omitted).
Id. at 171, 517 S.E.2d at 153-54. This Court held in CBP that "[b]ecause the issue of damages remains to be determined by the trial court, this is not a final judgment and the trial court's Rule 54(b) certification is ineffective." Id. at 171-72, 517 S.E.2d at 154 (citations omitted).
Defendants contend that the instant case is controlled by Bumpers v. Community Bank of N. VA, 364 N.C. 195, 695 S.E.2d 442 (2010). However, that case is distinguishable from the instant case. "The issue presented in [ Bumpers was] whether a judgment ruling on all substantive issues of a claim under section 75-1.1 is final and certifiable for appeal notwithstanding an unresolved claim for attorney fees under section 75-16.1." Id. at 195, 695 S.E.2d at 443.
In Bumpers, the North Carolina Supreme Court held that:
a party must show that it has prevailed on the substantive claim under section 75-1.1, and that one of the two factors enumerated above exists, before the trial court may award attorney fees to that party under section 75-16.1. It follows, therefore, that a claim for attorney fees under section 75-16.1 is not a substantive issue, or in any way part of the merits of a claim under section 75-1.1.
Bumpers, 364 N.C. at 203-04, 695 S.E.2d at 448 (citations omitted).
In Bumpers, the trial court had awarded damages, but had not ruled upon attorney's fees. In the instant case, the trial court only ruled on liability and did not award damages. Since damages have yet to be determined, this case is controlled by the holding in CBP, supra. The order of the trial court was not final as to any party or claim. The trial court's certification pursuant to Rule 54(b) was improper, and defendants' appeal is dismissed.
DISMISSED.
Judges STEPHENS and HUNTER, Jr., ROBERT N. concur.
Report per Rule 30(e).