Opinion
No. COA10-1439
Filed 7 June 2011 This case not for publication
Appeal by plaintiff from order entered 12 August 2010 by Judge Abraham Penn Jones in Orange County Superior Court. Heard in the Court of Appeals 12 May 2011.
Kilpatrick Townsend Stockton LLP, by Alan D. McInnes, Emily A. Moseley, and Todd S. Roessler, for plaintiff-appellant. Cranfill Sumner Hartzog LLP, by H. Lee Evans, Jr., and Jaye E. Bingham, for defendant-appellees.
Orange County No. 09 CVS 1720.
Jennifer Rioux ("plaintiff") appeals the trial court's order granting Accurate Home Inspection, Inc.'s ("AHI") and Bruce C. Raymond's ("Raymond") (collectively, "defendants") motion for partial judgment on the pleadings. We dismiss plaintiff's appeal as interlocutory.
I. BACKGROUND
On 12 August 2007, plaintiff entered into a contract to purchase a parcel of real property located at 207 Oleander Drive in Carrboro, North Carolina ("the property"). On 21 August 2007, plaintiff entered into a contract with AHI under which AHI agreed to perform a home inspection and prepare a report for the property in accordance with the Standards and Practice of the North Carolina Home Inspection Licensure Board ("the contract"). The contract, which included only eight paragraphs and was only two pages in length, stated in bold, capital letters at the beginning of the document, " PLEASE READ THIS AGREEMENT CAREFULLY." The contract included the following clause:
7. It is understood that should the Company be found to be liable for any losses or damages resulting from failure to perform any of its obligations, including but not limited to negligence, breach of this agreement or otherwise, the liability of the Company shall be limited to a sum equal to the amount of the fee paid by the client for this inspection and report.
The contract also stated, "Payment in the amount of $330 has been received on 08/21/2007." Furthermore, the contract stated, "The undersigned [has] read, understood and accepted the terms and conditions of this agreement. . . ." Plaintiff signed the contract and placed her initials in two different locations on the contract.
Also on 21 August 2007, Donald Roush ("Roush"), on behalf of AHI, inspected the property and prepared an inspection report ("the inspection report") which was approved by Raymond, a licensed home inspector and engineer, and the sole shareholder of AHI. The inspection report mentioned, inter alia, "hair line cracks" in exterior walls due to "normal settling," and stated that the gutters required cleaning, an electrical outlet in the kitchen required re-wiring, and "there was rot in the exterior closet roof sheathing." Later in August 2007, pursuant to an oral agreement between plaintiff and AHI, AHI reinspected the property to determine if the seller adequately addressed the items needing repair or maintenance that were listed in the inspection report. Plaintiff paid AHI a sum of $150.00 for the reinspection. During the reinspection, plaintiff notified Roush that a portion of the roof was not repaired. Roush replied that it was "not a big deal" and told plaintiff to "forget about it."
During February 2008, plaintiff noted numerous cracks in the interior walls. On 23 April 2008, she hired Triangle Waterproofing and Drainage Co. ("Triangle") to inspect the property. In a letter dated 2 May 2008, Triangle found that water had entered the footings of the property, the downspouts and French drains were not exited properly, and the access door to the crawlspace was decayed and did not close properly.
On 1 July 2008, Thomas Admay ("Admay") of Engineered Foundation Solutions, PLLC ("EFS"), issued a report titled "Evaluation of Settlement and Proposed Repairs, 207 Oleander Road Carrboro, North Carolina" ("the EFS report"). As a result of the EFS report and other assessments, plaintiff discovered additional, significant problems and defects with the property, including structural issues, poor drainage, leaks in the roof, problems with the heating and air conditioning system, electrical problems, and plumbing problems.
On 9 September 2008, in response to plaintiff's concerns and at Raymond's request, Raymond, on behalf of Raymond Engineering, Inc. ("REI"), inspected the property but failed to discover any problems. Admay was present during the September 2008 inspection. Following the inspection, REI issued a report ("the REI report") indicating that cracks should be monitored, but no structural repairs were required. In response to the REI report, Admay drafted a response, disputing REI's findings and conclusions, and indicating that the property experienced significant settlement requiring repairs to the foundation and drainage improvements.
On 29 September 2009, plaintiff filed a complaint in Orange County Superior Court, alleging claims of breach of contract, negligent misrepresentation, and negligence and gross negligence against defendants. On 2 December 2009, defendants filed an amended answer, denying breach of contract, negligent misrepresentation, negligence and gross negligence, and attaching a copy of the contract.
On 11 March 2010, defendants moved for partial judgment on the pleadings pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(c) (2009) ("Rule 12(c)") on the ground that plaintiff's complaint, with attachments, and defendants' answer, established that there was a contract between plaintiff and AHI for a home inspection, and that the contract included a provision limiting defendants' liability as to any losses or damages, including those alleged to arise through negligence or breach of contract. Defendants further argued that based on the pleadings, there was no issue of material fact as to the contract, and that there was only a question of law regarding the limitation of liability clause. Defendants asked the court to uphold the terms of the contract and limit their liability to plaintiff per the terms of the contract.
Following a hearing, the trial court entered an order on 12 August 2010 granting defendants' motion. Plaintiff filed a notice of appeal on 25 August 2010. On 17 September 2010, the parties entered into a consent order staying the trial court's proceedings pending the outcome of plaintiff's appeal.
II. INTERLOCUTORY APPEALS
Initially, we must address whether plaintiff's appeal properly lies from the trial court's order. "We recognize that an award of partial judgment on the pleadings does not generally constitute an appealable order." Volvo Const. Equip. North America v. CLM Equip., 386 F.3d 581, 591 n. 9 (4th Cir. 2004). See also JP Morgan Chase Bank v. First American Title, 725 F. Supp. 2d 619, 624 (E.D. Mich. 2010) (holding that order granting partial judgment on pleadings is not "a final and immediately appealable order" because it does not "conclusively dispose[] of all issues as to all parties").
"It is well established in this jurisdiction that if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves." Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (citing Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959); Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956)). Our Supreme Court has stated:
A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. . . . An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.
Bailey, 301 N.C. at 209, 270 S.E.2d at 433 (internal quotation and citations omitted).
In the instant case, after plaintiff filed her notice of appeal of the trial court's order, the parties entered into a consent order "to Stay Trial Court Proceedings, pending the outcome of the current appeal by the Plaintiff. . . ." Therefore, the trial court's order is interlocutory because it "does not finally dispose of the case and requires further action by the trial court." Id. at 209, 270 S.E.2d at 434.
A trial court's declaration that a judgment is final "does not make it so." Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). Although final judgments always may be appealed, interlocutory orders may be appealed in only two ways: "when the trial court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason for delay of the appeal; and when the interlocutory order affects a substantial right under N.C.G.S. §§ 1-277(a) and 7A-27(d)(1)." Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citing Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999)).
The reason for these rules is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division. "Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment."
Waters v. Personnel, Inc., 294 N.C. 200, 207-08, 240 S.E.2d 338, 343 (1978) (quoting Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951). "There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders." Veazey v. Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950).
A. Substantial Right
"[I]t is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994); see also Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (2005). When the appellant fails to meet this burden, her appeal will be dismissed. Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254. When her appeal is based upon an interlocutory order, "the appellant must include in its statement of grounds for appellate review `sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.'" Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338 (quoting N.C. R. App. P. 28(b)(4)).
In the instant case, plaintiff does not present any argument in her brief regarding whether a substantial right has been affected. Instead, she apparently seeks to base appellate review solely upon the trial court's certification pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) ("Rule 54(b)), that there is no just reason for delaying the appeal of trial court's order. Furthermore, because the trial court's order seems to implicate Rule 54(b) only, and because we will not "construct arguments for or find support for appellant's right to appeal from an interlocutory order[,]" Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254, we consider only whether the trial court's certification pursuant to Rule 54(b) was proper.
At oral argument before this Court, plaintiff's counsel contended that the substantial right affected by the trial court's order was that it denied plaintiff "effective recovery," since it limited defendants' liability to $330.00. However, since plaintiff did not cite any authority to support this proposition, it is abandoned. N.C. R. App. P. 28 (2010).
B. Rule 54(b)
N.C. Gen. Stat. § 1A-1, Rule 54(b) (2010) provides that:
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.
N.C. Gen. Stat. § 1A-1, Rule 54(b). "Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes." Id.
The order in the instant case stating, "[T]here being no just reason for delay, that the Order shall be certified as a final judgment, subject to immediate review by appeal[,]" is an effective certification pursuant to Rule 54(b). Along with an effective certification, Rule 54(b) also requires that the judgment be final "as to one or more but fewer than all of the claims[.]" N.C. Gen. Stat. § 1A-1, Rule 54(b) (emphasis added).
Rule 54(b) modifies the traditional notion that a case could not be appealed until the trial court had finally and entirely disposed of it all. [] The rule should be seen as a companion to other rules of procedure which permit liberal joinder of claims and parties. [] In multiple claim or multiple party cases the trial court may enter a judgment which is final and which fully terminates fewer than all the claims or claims as to fewer than all the parties. Rule 54(b) permits the trial judge by determining in such a judgment that there is no just reason for delay to release it for immediate appeal before the litigation is complete as to all claims or all parties.
Industries, Inc., 296 N.C. at 490, 251 S.E.2d at 446-47 (internal quotation and citations omitted).
Although "the trial court's determination that there is no just reason to delay the appeal, while accorded great deference, [] [it] cannot bind the appellate courts because ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court." First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998) (internal citations and quotation marks omitted). Accordingly, we may review whether the judgment certified for appeal under Rule 54(b) is indeed a final, appealable judgment on plaintiff's claim. Industries, Inc., 296 N.C. at 491, 251 S.E.2d at 447. Therefore, in order to determine whether the trial court's Rule 54(b) certification was proper, we must determine whether the trial court entered a final judgment as to a "claim for relief."
In plaintiff's complaint, she asserted claims for relief for breach of contract, negligent misrepresentation, negligence and gross negligence against defendants. The trial court then granted defendants' motion for partial judgment on the pleadings on the ground that the pleadings, with attachments, established that a valid contract existed between plaintiff and AHI for a home inspection, and that the contract included a valid provision limiting defendants' liability to $330.00 for any losses or damages, including those alleged to arise through negligence or breach of contract. However, according to the contract, the limitation of liability clause only applied "should the Company be found to be liable. . . ." Therefore, the issue of defendants' liability as to plaintiff's claims was outstanding. Because the issues of the validity of the contract and the limitation of liability clause are not claims for relief, immediate appeal of the trial court's order under Rule 54(b) is not available.
During oral argument before our Court, plaintiff's counsel argued that the trial court's order effectively dismissed plaintiff's claims because no client would continue to invest time and resources pursuing a claim for recovery limited to $330.00. While this Court will not pass judgment on the wisdom of a decision by plaintiff or her counsel to pursue such a claim, the fact is that plaintiff still has the option to pursue that claim because the trial court did not dismiss her causes of action against defendants. Furthermore, plaintiff was unable to cite any cases from our Courts, or any other jurisdiction, to support the proposition that the trial court's order granting partial judgment on the pleadings in a situation such as this one has the effect of a final judgment on one or more of her claims.
III. CONCLUSION
The trial court's order granting defendants' motion for partial judgment on the pleadings is dismissed as interlocutory.
Dismissed.
Judges ERVIN and THIGPEN concur.
Report per Rule 30(e).