Brian A. Walsh (defendant) appeals from an order entered 26 September 2012 by Judge Mark E. Powell, denying his motion to dismiss. After careful consideration, we reverse and remand.
I. Background
By now, the facts of this case arе wholly familiar to this Court, as we have previously heard three separate appeals regarding the same issue again central to the instant appeal: Callanan v. Walsh, No. COA 04-1027,
On 4 February 2004, Judge C. Dawn Skerrett entered a judgment which, in relevant part, treated the parties premarital agreement as marital debt. Plaintiff appealed, and in Callanan I we determined that the premarital agreement could not have been marital debt and we remanded to the trial court for further findings regarding the $450,000.00. In response to our ruling, Judge S. Cilley entered an order on 6 March 2008, adjusting the 4 February 2004 judgment such that plaintiff’s assets were $450,000.00 greater than defendant’s. However, on 23 July 2008, defendant filed a Rule 60 motion for relief from the 6 March 2008 order. On 5 November 2008, Judge Cilley еntered a new order granting defendant’s
On remand, the trial court entered a judgment on 21 September 2010, concluding that the $450,000.00 matter was a valid prenuptial agreement between the parties. Neither party appealed from this final judgment. However on 7 December 2010, defendant filed a motion for contempt against plaintiff. On 2 Marсh 2011, the trial court found plaintiff in contempt for failing to abide by a portion of the 4 February 2004 judgment. Plaintiff appealed, arguing that 4 February 2004 judgment was no longer in effect. On appeal, we concludеd in Callanan III that the 4 February 2004 judgment remained in effect despite the subsequent orders and appeals, with the only change being that the 21 September 2010 judgment reclassified the $450,000.00 in the 4 February 2004 judgment as “a valid рrenuptial agreement” rather than “marital debt.” We noted though, that “although the trial court originally classified the $450,000.00 matter as marital debt, the trial court arrived at the distributional award by deducting the $450,000.00 amount bеfore dividing the parties’ marital assets, ultimately achieving the same result as if the amount had been properly classified as a prenuptial agreement.” We then concluded that “the 2010 Judgment is the finаl judgment in this matter, which left the 2004 Judgment in effect with the amended findings of fact regarding the classification of the $450,000.00 matter” and that “plaintiff did not appeal the 2010 Judgment.” As such, we affirmed the trial court’s contempt judgment against plaintiff.
Moving to the present appeal, the case is again before us because on 10 March 2011, before we issued our opinion in Callanan III, plaintiff filed a suit against defendant alleging that defendant had failed to pay plaintiff $450,000.00 as pursuant to their premarital agreement. In her complaint, plaintiff sought damages and specific performance. On 3 June 2011, defendant filed an answer and motion to dismiss, arguing, in part, 1) that plaintiff failed to state a claim upon which relief could be granted because her claim was already the subject of an equitable distribution (ED) action and had already been adjudicated and 2) that the trial
II. Analysis
We will first address whether defendant’s appeal is interlocutory. It is wеll-established that “[a]n Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable.” O’Neill v. Southern Nat’l Bank,
The crux of defendant’s argument for the immediacy of his appeal is that plaintiff filed her action on 10 March 2011, prior to our ruling in Callanan III, which was issued on 7 February 2012. As such, defendant fears that he is at risk of having the $450,000.00 agreement enforced against him twice in two different actions: once in the ED judgment, and again in the present action. Alternatively, defendant also argues that the trial court for the present suit could conclude opposite to how the trial court in the ED suit concluded, thus creating inconsistent verdicts. This Court has held that
[a] party has a substantial right to avoid two trials on thе same facts in different forums where the results would conflict. Where a party is appealing an interlocutory order to avoid two trials, the party must show that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.
Clements v. Clements,_N.C. App._,_,
Turning now to the deniаl of defendant’s motion to dismiss, we conclude that this decision was made in error, as the superior court does not have jurisdiction over the present suit. Defendant directs our attention to Burgess v. Burgess,
In Burgess, the parties were husband and wife who each owned 50% shares of a residential contracting company, Burgess & Associates, Inc. The parties then divorced and an ED action was filed. In her divorce complaint, the wife requested “exclusive possession and full use of Burgess & Associates pending an equitable distribution of the company.”
On appeal we conducted a de novo review of the matter. Wе noted that “[i]n an equitable distribution action, the district court is empowered to determine what is the marital property and divisible property and shall provide for an equitable distribution of the marital property and divisible property between the parties[.]” Id. at 330,
Turning to the facts of the case sub judice, it is clear that the premarital agreement and the $450,000.00 matter were directly addressed in the ED suit. Thus, the district court’s jurisdiction has already been invoked regarding this matter, and the superior court lacks jurisdiction to adjudicate plaintiff’s claim. Further, we note that plaintiff is barred from filing an action for specific performance as a means to circumvent the final ED judgment issued on 21 September 2010, from which she did not appeal.
ITT. Conclusion
In sum, we conclude that the trial court erred in denying defendant’s motion to dismiss. Defendant’s motion should be granted, because the superior court lacks jurisdiction to adjudicate plaintiff’s claim
Reversed and remanded.