Edwards v. FoleyÂ
253 N.C. App. 410
| N.C. Ct. App. | 2017Background
- Clyde M. Foley is a co-founder and former minority shareholder of XMC Films; dispute arose between Foley, other minority shareholders, and XMC/current management.
- Plaintiffs filed multiple claims; Defendants filed a motion to dismiss, an answer, counterclaims, and a third-party complaint.
- Plaintiffs and Defendants filed cross-motions for summary judgment. The trial court granted Plaintiffs’ summary judgment on Defendants’ counterclaims and denied Defendants’ summary judgment on Plaintiffs’ claims.
- Defendants appealed the trial court’s interlocutory order but did not allege any substantial right affected by that interlocutory order in their principal appellate brief.
- After Plaintiffs pointed out the deficiency in their appellee brief, Defendants sought leave to amend their principal brief to add grounds for interlocutory review; the Court of Appeals denied leave and dismissed the appeal as interlocutory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an interlocutory order granting summary judgment on counterclaims is immediately appealable | Plaintiffs argued the order was interlocutory and not appealable absent certification or showing of a substantial right | Defendants argued the appellate court should hear the appeal from the interlocutory order (but did not initially identify a substantial right) | The appeal was dismissed as interlocutory because Defendants failed to assert a substantial right in their principal brief |
| Whether the Court should allow amendment of the principal brief after appellee brief to cure failure to plead a substantial right | Plaintiffs argued dismissal was proper; appellee brief pointed out procedural deficiency | Defendants sought leave to amend their principal brief to assert a substantial right after appellees raised the defect | Court refused amendment (following Larsen) and dismissed the appeal for failure to meet the interlocutory-appeal burden |
Key Cases Cited
- Veazey v. City of Durham, 231 N.C. 357 (N.C. 1950) (defines interlocutory order and explains it does not finally dispose of the case)
- Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377 (N.C. Ct. App. 1994) (explains interlocutory appeals allowed only for Rule 54(b) certification or when a substantial right is affected)
- Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191 (N.C. 2008) (discusses consequences of noncompliance with appellate briefing rules generally)
- Larsen v. Black Diamond French Truffles, Inc., 772 S.E.2d 93 (N.C. Ct. App. 2015) (holds that an appellant may not cure failure to show a substantial right in a reply or later filing; dismissal required when principal brief lacks required grounds for interlocutory review)