Beam v. Morrow

336 S.E.2d 106 (1985)

J. Ramey BEAM, Tommy Dillinger, Representing A Green Valley Unincorporated Associate of Concerned Citizens v. Dr. Sarah T. MORROW, Secretary of the North Carolina State Department of Human Resources; et al.

No. 8525SC445.

Court of Appeals of North Carolina.

November 19, 1985.

*107 Long, Howell, Parker & Payne, P.A. by Ronald W. Howell and Robert B. Long, Jr., Asheville, for plaintiffs-appellees.

Womble Carlyle Sandridge & Rice by Allan R. Gitter and William McBlief, Winston-Salem; Clement Miller & Whittle by Charles E. Clement and Allen C. Moseley, Boone; and Kathryn G. Hemphill, Newland, for defendants-appellants County Commissioners.

G.D. Bailey and J. Todd Bailey by J. Todd Bailey, Burnsville, for defendant-appellant Pansy Lacey.

WELLS, Judge.

The threshold question is whether the order allowing plaintiffs' motion for partial summary judgment is appealable. "A judgment is either interlocutory or the final determination of the rights of the parties." N.C.Gen.Stat. § 1A-1, Rule 54(a) of the Rules of Civil Procedure. A final judgment disposes of the cause as to all the parties, leaving nothing to be determined between them in trial court. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). When more than one claim for relief is presented the court may enter a final judgment as to fewer than all the claims or parties "only if there is no just reason for delay and it is so determined in the judgment." G.S. 1A-1, Rule 54(b). See Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240, appeal dismissed, 301 N.C. 92 (1980). Rule 54(b) also permits appeal when fewer than all claims are determined if "expressly provided by these rules or other statutes." The "other statutes" are N.C.Gen.Stat. § 1-277 (1983) and N.C.Gen.Stat. § 7A-27(d) (1981), which allow an immediate appeal from a judicial determination which deprives appellant of a substantial right which he would lose if the *108 ruling is not reviewed on appeal before final judgment. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978); Leasing Corp., supra.

In this case the partial summary judgment did not dispose of all the claims against all of the parties, but only the claim against the Commissioners and Lacey seeking to declare the contract and deed void. While the forecast of evidence before the trial court would appear to support the trial court's judgment, there remains for later determination at trial the questions of the accounting of the expenditures made by the Commissioners in connection with the purchase of the property and the application for a landfill permit and the recovery of the $200,000 paid by the Commissioners to Harris. The trial court did not make the determination that there is no just reason for delay. Since this order is interlocutory it is appealable only if a substantial right would be lost if the order is not reviewed before final judgment. We find that defendants Commissioners and Lacey will not lose any substantial right by waiting to appeal this issue after the trial on the issues of the accounting of the expenditures and the recovery of the $200,000. As this appeal is premature, it must be and is

Dismissed.

HEDRICK, C.J., and EAGLES, J., concur.