NYTCO LEASING, INC. v. Dan-Cleve Corporation

212 S.E.2d 41 (1975)

25 N.C. App. 18

NYTCO LEASING, INC., Plaintiff, v. DAN-CLEVE CORPORATION et al., Defendants-Appellants, v. SOUTHEASTERN MOTEL CORPORATION, Third-Party Defendant.

No. 7410SC874.

Court of Appeals of North Carolina.

March 5, 1975.

Certiorari Allowed May 6, 1975.

*43 Sanford, Cannon, Adams & McCullough by John Q. Beard, E. D. Gaskins, Jr., H. Hugh Stevens, Jr., and Daniel T. Blue, Jr., Raleigh, for plaintiff-appellee.

Vaughn S. Winborne and Ellis Nassif, Raleigh, for defendants-appellant.

Certiorari Allowed by Supreme Court May 6, 1975.

BROCK, Chief Judge.

Although neither party has raised the question, it is clear that the judgment from which the original defendants purport to appeal adjudicates "the rights and liabilities of fewer than all the parties" and contains no determination by the trial judge that "there is no just reason for delay" within the language of Rule 54(b) of the North Carolina Rules of Civil Procedure. Rule 54(b) provides:

"(b) Judgment upon multiple claims or involving multiple parties. 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 *44 claims and the rights and liabilities of all the parties." (Emphasis added.)

In the recent case of Arnold v. Howard, 24 N.C.App. 255, 210 S.E.2d 492 (1974), we pointed out the purpose of and need for Rule 54(b). In that case plaintiff sued the original defendants for money due on a promissory note. The defendants answered, setting out, in addition to certain defenses, a third-party claim for contribution against a third-party defendant. After the pleadings were filed, the third-party defendant moved for summary judgment on the original defendants' claim against him. The trial court found no genuine issue as to any material fact, granted the motion, and dismissed the original defendants' claim for contribution against the third-party defendant. The original defendants appealed. Because the judgment from which they attempted to appeal adjudicated "the rights and liabilities of fewer than all the parties" and furthermore contained no determination by the trial judge that there was "no just reason for delay," the judgment was interlocutory and not appealable. The opinion of the Court in Arnold v. Howard, supra, states:

"Under the North Carolina Rule, the trial court is granted the discretionary power to 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.' (Emphasis added.) By making the express determination in the judgment that there is `no just reason for delay,' the trial judge in effect certifies that the judgment is a final judgment and subject to immediate appeal. In the absence of such an express determination in the judgment, Rule 54(b) makes `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,' interlocutory and not final. By express provision of the Rule, such an order remains `subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties,' and such an order is not then `subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.' G.S. 1-277 is not such an express authorization. See Comment to G.S. 1A-1, Rule 54(b). "24 N.C.App., at 258, 210 S.E.2d at 494.

In the case at bar, the judgment adjudicates "the rights and liabilities of fewer than all the parties" and contains no determination by the trial judge that "there is no just reason for delay." Although the claims of the respective defendants against each other do not seem to affect the plaintiff's rights, it is clear that under Rule 54(b) the judgment is interlocutory and not presently appealable.

Appeal dismissed.

BRITT and CLARK, JJ., concur.