Opinion
No. COA11–615.
2012-04-17
Steven MATZ, Plaintiff, v. Jay A. PHILLIPS and Garyetta Lequire, Defendants.
Horack, Talley, Pharr & Lowndes, P.A., by John W. Bowers, for plaintiff-appellee. Aaron Bridgers–Carlos, Attorney at Law, PLLC, by Aaron Bridgers–Carlos, for defendants-appellants.
Appeal by defendants from order entered 17 August 2010 by Judge Danya Ledford Vanhook in Swain County District Court. Heard in the Court of Appeals 16 November 2011. Horack, Talley, Pharr & Lowndes, P.A., by John W. Bowers, for plaintiff-appellee. Aaron Bridgers–Carlos, Attorney at Law, PLLC, by Aaron Bridgers–Carlos, for defendants-appellants.
GEER, Judge.
Defendants Jay A. Phillips and Garyetta Lequire appeal an order granting plaintiff Steven Matz' motion for partial summary judgment, concluding that plaintiff has a valid express easement and permanently enjoining defendants from obstructing that easement. As acknowledged by defendants, this appeal is interlocutory because plaintiff's claims for actual and punitive damages remain pending before the trial court. Since the trial court's order does not contain a valid certification pursuant to Rule 54(b) of the Rules of Civil Procedure and defendants have not demonstrated that any substantial right is at stake, we lack jurisdiction and, therefore, dismiss the appeal.
Facts
Harvey Ray Ensley conveyed three tracts of land to Harvey and Cynthia Fein on 18 November 2005. Defendants purchased two of the tracts from the Feins on 26 March 2007. Plaintiff purchased the third tract from the Feins on 21 May 2008. Plaintiff's deed conveyed with the third tract “an easement for ingress, egress, and utilities from the property conveyed to the public road, 20 feet in width, the centerline of which is the centerline of the existing roads leading from the property conveyed to the public road.” This easement crossed defendants' property.
Plaintiff contends that the “existing roads” described in the deed consisted of Mt. Keys Road, which had been blocked due to the planting of large holly trees in the middle of the road, and a “primary access” road that is the subject of this action. According to plaintiff, this “primary access” road was used until defendants placed a locked gate across the road, blocking access to the road. Defendants, however, contend that the only “existing road” was Mt. Keys Road.
Plaintiff filed suit on 15 September 2009, seeking judicial recognition of the easement, actual and punitive damages as a result of the blocking of the “primary access” road, and injunctive relief. The parties ultimately filed cross-motions for partial summary judgment on the issue of judicial recognition of the easement.
In an order filed 17 August 2010, the trial court granted plaintiff's partial motion for summary judgment and permanently enjoined defendants from interfering with plaintiff's easement. Defendants appealed.
Discussion
Defendants concede that since plaintiff's claims for actual and punitive damages remain pending, this appeal is interlocutory. See Liggett Grp., Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993) (“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.”). As our Supreme Court has held, “[i]n general, a party may not seek immediate appeal of an interlocutory order.” Dep't of Transp. v. Rowe, 351 N.C. 172, 174, 521 S.E.2d 707, 709 (1999).
More recently, the Supreme Court has explained: “Interlocutory orders may be appealed immediately under two circumstances. The first is when the trial court certifies [under Rule 54(b) ] no just reason exists to delay the appeal after a final judgment as to fewer than all the claims or parties in the action. The second is when the appeal involves a substantial right of the appellant and the appellant will be injured if the error is not corrected before final judgment.” N.C. Dep't of Transp. v. Stagecoach Vill., 360 N.C. 46, 47–48, 619 S.E.2d 495, 496 (2005) (internal citation omitted).
Defendants first contend that the trial court certified the order pursuant to Rule 54(b). Although defendants concede that the order itself contains no Rule 54(b) language, defendants point to a letter dated 24 August 2010 that defendants received from the Assistant Clerk of Swain County. That letter stated:
The [trial judge] requested that I forward a letter to you stating that she entered the order granting partial summary judgment and order striking affidavits over your objection, I have attached the order. You have 30 days from the date of judgment to enter an appeal if you have an objection to this order.
Defendants contend the last sentence referring to an appeal meets the requirements of Rule 54(b).
Rule 54(b) provides:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(Emphasis added.)
As this Court has explained, “under G.S. 1A–1, Rule 54(b), in the absence of a determination by the trial judge that ‘there is no just reason for delay,’ there can be no appellate review of an order which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties.” Thompson v. Newman, 74 N.C.App. 597, 598, 328 S.E.2d 597, 598 (1985). See also Pasour v. Pierce, 46 N.C.App. 636, 638–39, 265 S.E.2d 652, 653 (1980) ( “Moreover, the court did not employ the procedure established by the rule to assure an immediate appeal of its Order dismissing the plaintiff's claim against the City since nowhere in the order did the court certify that there is no just reason for delay. This Court has held that the signing of an appeal entry by the trial court cannot, in and of itself, be held to satisfy the affirmative act of certification required by Rule 54(b).” (internal citation and quotation marks omitted)).
Here, the letter upon which defendants rely does not contain a certification that there was “no just reason for delay” as required by Rule 54(b). Further, the letter from the clerk of court is not a judgment or order. Rule 54(b) requires “the court” to include the certification in the judgment. Consequently, the clerk's letter declaring that defendants had 30 days to appeal is insufficient to satisfy the certification requirements of Rule 54(b).
As the trial court did not certify the judgment for immediate appeal under Rule 54(b), we must dismiss unless “the interlocutory order ‘affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment.’ “ Stanford v. Paris, 364 N.C. 306, 311, 698 S.E.2d 37, 40 (2010) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Defendants claim that four substantial rights will be affected: (1) use and enjoyment of the property, specifically the right to build on the easement; (2) widening of an existing private drive which will damage the current landscape; (3) making another portion of their land unusable as a building site; and (4) increasing traffic in front of their current home endangering children.
Significantly, defendants cite no cases to support their contention that this appeal involves a substantial right. In addition, defendants do not articulate why these rights will be lost or would be incapable of redress if defendants are required to wait to appeal until after the trial court renders final judgment.
This Court has previously held, in similar circumstances, that a finding of an easement does not confer an immediate right of appeal:
We simply fail to see how defendants' claimed right to hold title to the property free from this encumbrance will clearly be lost or irremediably adversely affected if the order is not reviewed before final judgment. Nothing in the facts indicate that allowing plaintiff use of this easement until final judgment will permanently harm defendants. The record contains no allegations that plaintiff plans to alter or damage the easement, which is the only possible lasting harm we can envision that might occur by waiting. Furthermore, any damage to the easement or defendants' property resulting from plaintiff's use during this period can be rectified later by monetary damages if necessary.
Miller v. Swann Plantation Dev. Co., 101 N.C.App. 394, 396, 399 S.E.2d 137, 139 (1991) (internal citation and quotation marks omitted). See also Pruitt v. Williams, 288 N.C. 368, 374, 218 S .E.2d 348, 352 (1975) (finding no loss of substantial right when use of road allowed pending final judgment).
In sum, defendants have failed to establish that the trial court certified the partial summary judgment order for immediate appeal under Rule 54(b) and have not demonstrated the existence of a substantial right that will be lost absent an immediate appeal. We are, therefore, required to dismiss the appeal.
Dismissed. Judges ROBERT C. HUNTER and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).