Smoky Mountain Sancturary Prop.s Owners Ass'n, Inc. v. Shelton

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-112 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 SMOKY MOUNTAIN SANCTUARY PROPERTY OWNERS ASSOCIATION, INC., a North Carolina non-profit corporation, Plaintiff, v. Haywood County No. 10 CVS 1452 CONSTANCE P. SHELTON, Trustee of the Constance P. Shelton Revocable Trust dated September 8, 1998, and LEE F. SHELTON, Trustee of the Lee E. Shelton Revocable Trust Dated September 8, 1998, Defendants/Third Party Plaintiffs, v. O.M.A. LAND, INC. and EMIL MASSARO, BARRY SMALL and ELISABETH TASIS-SMALL, Third Party Defendants. Appeal by defendants from judgment entered 24 September 2013 and order entered 28 October 2013 by Judge Marvin P. Pope in Haywood County Superior Court. 19 September 2014. Heard in the Court of Appeals -2Jeffrey W. Norris & Associates, PLLC, by Jeffrey W. Norris, for plaintiff-appellee. Melrose, Seago & Lay, P.A., by Mark R. Melrose and Joshua D. Nielsen, for defendants-appellants. HUNTER, Robert C., Judge. Defendants appeal from the judgment entered for plaintiff following a bench trial and the order denying their motion for a new trial and judgment notwithstanding the verdict (“JNOV”). appeal, the gist of defendants’ On arguments is that the trial court erred in bifurcating their compulsory counterclaims and affirmative contends defenses that from defendants plaintiff’s failed to claims. appeal the Plaintiff trial court’s order bifurcating the claims and has filed a motion to dismiss Issues I, II, and III of defendant’s appeal pursuant to North Carolina Rule of Appellate Procedure 3(d). After partially careful dismiss review, the appeal we deny plaintiff’s motion to because defendants’ failure to designate the interlocutory order bifurcating the trial in its notice of appeal does not prevent this Court jurisdiction pursuant to Tinajero v. from obtaining Balfour Beatty Infrastructure, Inc., __ N.C. App. __, __, 758 S.E.2d 169, 175 (2014). However, we dismiss the appeal as interlocutory. -3Background Plaintiff Smoky Mountain Association, Inc. organized “promote to (“SMSPOA”) the Sanctuary is a common Property non-profit interest of Owners corporation the property owners” in a development known as the Smoky Mountain Sanctuary (the “Sanctuary”). assessments from Declarations Its lot of main owners Covenants, responsibility pursuant to Conditions, Easements for the Sanctuary (the “CCRE”). the is to collect terms of Restrictions, the and Defendants Constance P. Shelton and Lee F. Shelton (“defendants”) are trustees of the Constance P. Shelton and Lee E. Shelton revocable trusts and own lots 41 and 42 within the Sanctuary. In 2010, defendants owed $3,600 in annual assessments and fees. It is undisputed that defendants did not pay the 2010 assessments; in their answer and counterclaim, based on they claim plaintiff’s that failure they to were excused maintain the from roads paying in the Sanctuary. On 22 December 2010, plaintiff filed a complaint against defendants for breach of contract and requested interest and attorney’s assessments. fees in addition to the $3,600 owed for the On 4 April 2011, defendants filed an answer and counterclaim, admitting they did not pay the 2010 assessment but -4claiming that they were excused from performing because plaintiff failed to repair and maintain Celestial Way, a road in the common area defendants’ of the lots. counterclaims: (1) Sanctuary, Moreover, breach of which provided defendants contract based access asserted on to two plaintiff’s failure to comply with the CCRE; and (2) breach of duty to a member pursuant to N.C. Gen. Stat. § 55A-8-30. In their amended answer, defendants also filed causes of action for a declaratory judgment and specific performance. Although a copy is not included in the record, defendants filed a third-party complaint against O.M.A. Land, Inc. and Emil Massaro (the “third-party defendants”). third-party In their defendants answer, were defendants required to claimed construct that an the “all- weather” road to serve lots 41 and 42, which they failed to do. Furthermore, according to defendants, the third-party defendants conducted land disturbing activities on adjacent lots which led to “tons of fill dirt” falling on Celestial Way. On judgment 13 on April both 2012, its plaintiff affirmative filed claims motions and on for summary defendants’ counterclaims, both of which were denied by the trial court. On 13 June 2013, plaintiff filed a motion to bifurcate the trial. Specifically, pursuant to Rule 42, plaintiff moved to bifurcate -5its affirmative claims from defendants’ counterclaims and thirdparty claims because, in sum, the matter had been “drag[ging] on” and bifurcation would not prejudice defendants or the thirdparty defendants. On 22 July 2013, the trial court issued an order granting plaintiff’s motion and bifurcating plaintiff’s affirmative claims from “the remaining issues as set forth in [d]efendants’ counterclaims and third party complaints.” Defendants filed a motion for the trial court to reconsider this order on 25 July 2013, which was denied by the trial court. The matter came on for a bench trial on 12 August 2013. After considering the evidence, the trial court found that, pursuant to the CCRE, plaintiff complied with the procedural requirements regarding the assessments and that defendants breached the CCRE by failing to pay the 2010, 2011, 2012, and 2013 assessments on lots 41 and 42. Furthermore, the trial court held that plaintiff was entitled to reasonable attorney’s fees and costs. In total, the trial court entered a judgment against defendants for $78,934.85. On 15 October 2013, defendants moved for a new trial and JNOV, claiming that they were prevented from having a fair trial because the trial court prohibited them from presenting evidence showing that plaintiff’s material breach of the CCRE excused -6defendants from having to pay the annual assessments on lots 41 and 42. 2013. from The trial court denied defendants’ motion on 28 October On 12 November 2013, defendants filed a notice of appeal the trial court’s judgment and its defendants’ motion for a new trial and JNOV. order denying At the time the notice was filed, the trial on defendants’ counterclaims and claims against the third-party defendants had not been held. Plaintiff’s Motion to Partially Dismiss the Appeal On 10 April 2014, plaintiff filed a motion to partially dismiss that, defendants’ because defendant is counterclaims the appeal. notice appealing and Specifically, of the appeal order third-party does plaintiff not bifurcating claims alleges designate the from that defendant’s plaintiff’s affirmative claims, this Court does not have jurisdiction to address Issues I, II, and III of defendant’s appeal pursuant to Rule 3(d). This For the following reasons, we disagree. Court recently clarified the appealability of interlocutory orders that are not specifically designated in a notice of appeal under Rule 3: We note that while Rule 3(d) of the Rules of Appellate Procedure provides that the notice of appeal “shall designate the judgment or order from which appeal is taken,” N.C. Gen. Stat. § 1–278 (2013) provides: “Upon an appeal from a judgment, the court may review -7any intermediate order involving the merits and necessarily affecting the judgment.” This Court has held that even when a notice of appeal fails to reference an interlocutory order, in violation of Rule 3(d), appellate review of that order pursuant to N.C. Gen. Stat. § 1–278 is proper under the following circumstances: (1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment. All three conditions must be met. Tinajero, __ N.C. App. at __, 758 S.E.2d at 175; see also Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000) “another (noting avenue that by N.C. which Gen. an Stat. appellate § 1-278 may provide court may obtain jurisdiction to review an interlocutory order absent compliance with Rule 3(d)”). Here, timely all objected three to conditions the order are and met. even First, filed a defendants motion for reconsideration of the bifurcation order on 25 July 2013, three days after the order was filed. In addition, defendants appealed the denial of their motion for a new trial and JNOV which were predicated, in part, upon the trial court’s decision to bifurcate the trial. Thus, plaintiff would have been on notice that defendants intended to appeal the bifurcation order, -8and the failure to specifically designate it in the notice of appeal would bifurcating not the prejudice trial was plaintiff. Second, interlocutory dispose entirely of the case. because the it order did not See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“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 controversy.”). which entitles to settle and determine the entire Furthermore, a bifurcation order is not one a party to an immediate appeal automatically affect a substantial right. nor does it Specifically, this Court has held that orders bifurcating trials do not necessarily implicate a substantial right even though “there will . . . be some repetition of evidence[.]” Land v. Land, 201 N.C. App. 672, 678, 687 S.E.2d 511, 516 (2010). order prevented defendants from Finally, because the presenting any evidence that plaintiff’s breach of the contract excused their performance of paying assessments, affected S.E.2d the at it judgment.” 175. In involved the Tinajero, other words, merits __ N.C. those and App. “necessarily at __, 758 counterclaims and affirmative defenses could have had substantial consequences on plaintiff’s ability to succeed in its breach of contract claim -9against defendants and on the amount of recovery plaintiff would be entitled to. Therefore, although defendants’ notice of appeal does not specifically designate the order bifurcating the trial, this Court has jurisdiction to consider Issues I, II, and III of defendants’ appeal. Accordingly, we deny plaintiff’s motion to partially dismiss the appeal. Interlocutory Nature of Appeal Despite the fact that this Court has jurisdiction to consider all issues raised in defendants’ appeal even though defendants did not fully comply with Rule 3(d), we must dismiss this appeal as interlocutory. Defendants’ counterclaims against plaintiff and its claims against the third-party defendants are still pending; thus, the “entire controversy” has not been “determine[d],” Veazey, 231 N.C. at 362, 57 S.E.2d at 381, and the judgment for plaintiff is clearly interlocutory. See also Fed. Land Bank of Columbia v. Lieben, 86 N.C. App. 342, 344, 357 S.E.2d 700, 702 (1987) (noting that an order granting summary judgment for one defendant was interlocutory because “[s]till to be determined” were the plaintiff’s claim against the other defendant, the defendant’s counterclaims against the plaintiff, the defendant’s cross-claims against the cross-claim defendants, -10and the defendant’s and third-party plaintiff’s complaint against the third-party defendant). “[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.” Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (quotation marks omitted). In its “Statement of Grounds for Appellate Review,” defendants assert that “this appeal lies as a matter of right to the Court Court[.]” the of Appeals from a final judgment of the Superior It is unclear whether defendants are contending that judgment is appealable as a final judgment because plaintiff’s claims against defendant have been resolved or under Rule 54(b) because itself as “final.” the trial court’s judgment characterizes However, as discussed, even though the trial court called the judgment “final,” it is clearly interlocutory as defendants’ counterclaims and third-party claims have yet to be resolved. Therefore, the only way the judgment would be -11immediately appealable was if the trial court certified it as immediately appealable pursuant to Rule 54(b) or if it affects a substantial right. With regard to Rule 54(b) certification, although the trial court classified its judgment as “final,” it did not certify it as immediately appealable or expressly declare that there was no just reason for delay of appeal. Our Supreme Court has held that a trial court’s designation of a judgment as “final” does not make it immediately appealable under Rule 54(b). Tridyn Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). immediate appeal Therefore, defendants are not entitled to of the judgment based on a Rule 54(b) certification. With regard to whether an interlocutory judgment or order affects a appellant substantial provide right, “sufficient Rule 28(b)(4) facts and requires argument to that an support appellate review on the ground that the challenged order affects a substantial right.” Here, defendants have failed to include any such argument that the judgment for plaintiff affects a substantial instead, right; they mistakenly claim that “this appeal lies as a matter of right to the Court of Appeals from a final judgment[.]” “It is not the duty of this Court to -12construct arguments for or find support for appellant’s right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). arguments on appeal Furthermore, as noted, defendants’ also challenge the bifurcation order. However, since bifurcation orders do not automatically affect a substantial right, Land, 201 N.C. App. at 678, 687 S.E.2d at 516, the burden was on defendants to provide support for the contention that failed to do. it affects a substantial right, which they In sum, since defendants have failed to provide any substantial right analysis as to either the interlocutory judgment or interlocutory bifurcation order, we dismiss this appeal as interlocutory. Conclusion Based on the foregoing reasons, we deny plaintiff’s motion to partially dismiss the appeal. as interlocutory. DISMISSED. However, we dismiss the appeal -13Chief Judge McGEE and Judge STEPHENS concur. Report per Rule 30(e).

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