*1 IN THE COURT OF APPEALS
JOHNSON LUCAS JOHNSON, LARYEA, JONES, COLLIER, PATRICIA DORIS LOVIE H. and GERALDINE PEACOCK, v. LYNWOOD and JOE Plaintiffs LUCAS TRIANGLE TIMBER t/a SERVICES, Defendants
No. COA03-1358 February (Filed 2005) Appeal and appealability partial Error— summary judgment —
Defendant’s was interlocutory dismissed as where his brief contained no of grounds appellate statement review of interlocutory (partial summary order judgment) and no dis- any right cussion that would be affected without immediate review.
Judge dissenting. Tyson by Appeal Lynwood defendant Lucas from entered June 2003 E. Judge Howard Manning, County Superior Jr. in Wake Appeals Court. Heard in the Court of 2004. August Higgins, Miles, Benjamin, Elam & P.L.L.G., by Robert Hunter., Hunter, Christopher N. Jr. Craig, plaintiff-appellees. and M. Ligón Hinton, by George and Ligón, Jr., for defendant- appellant.
HUDSON,Judge.
Lynwood (“defendant Lucas”) appeals partial from sum- mary judgment seventy-seven awarding ($77,000) thousand dollars Johnson, with costs to Patricia Doris Laryea, Jones, Lovie H. and (collectively, Geraldine Collier “plaintiffs”), recoverable from defendant Lucas Joe (“defendant and Peacock Peacock”) (col- lectively, “defendants”), jointly severally. The court based its part upon prior in by Judge Jr., Allen, fact J.B. from a 2001 order in which pay defendant Lucas was ordered to seventy-seven defendant Peacock thousand ($77,000). dollars We dis- interlocutory. miss this as Background
I. Lucas, Sr., property (“Property”) James owned located in Wake County, North Johnson, Carolina. His children are Patricia Doris Laryea, Collier, Lucas, Lucas, Geraldine William who is Lucas, Sr., not a to this action. When James died APPEALS THE COURT OF v. LUCAS *2 (2005)]
[168 Jones, for life. plaintiff Lovie H. by widow, passed will to his Property as equally to his children Property passed death, Upon her Lucas, Sr. was of James joint The Estate and tenants. remaindermen approved the of Court after the Clerk 2 December 1969 on closed as Executor. by defendant Lucas Account, filed Final on the H. Jones lived events, plaintiff Lovie relevant At the time of Upon April 1999. death in until her Property, where she remained possession plaintiff Johnson assumed death, Patricia H. Jones’ Lovie Property. approached defendant Lucas defendant In November Property. growing on sale of timber regarding the Peacock to defendant Peacock represented and warranted Defendant Lucas that he was property and H. Jones owned plaintiff Lovie that plaintiff H. and Lovie Defendant Lucas to sell the timber. authorized owner- defendant Peacock granting “Timber Deed” executed a Jones testified he Property. Defendant Peacock on the ship in the timber mother, and his defendant Lucas believing that purchased the timber it. Defendant Peacock Jones, were authorized to sell Lovie H. Plaintiff yards lumber it to several timber and sold harvested the paid Lucas subsequently defendant Peacock $107,040.74.Defendant price agreement. forth in the purchase set $32,413.20,the Lucas alleging that defendant May 1997,plaintiffs filed suit On 5 the other remaindermen authorization from the timber without sold and alleged: (1) Fraud proceeds. Plaintiffs share the and did not Conspiracy, Trespass, (4) Conversion, (3) Civil Misrepresentation, (2) Punitive Timber, (6) entitlement to Cutting of and Unlawful showing service summonses contains returned Damages. The record and County defendant Lucas by Wake on the Sheriff of did not personally. Defendant Lucas agent Peacock’s defendant complaint. answer the against and crossclaim filed an answer Peacock represented himself Lucas (1) defendant alleging: Lucas
defendant Peacock relied timber and defendant owners of the agent as for the Lucas representations, (2) defendant faith on those good that he was author- Peacock warranted to defendant and covenanted timber,” defend- the owners of the the “behalf of ized to act on Lucas if be indemnified Peacock should ant stipulated in Peacock and Defendants damages are awarded. was not obtained process of the crossclaim service of the record that Lucas. on defendant THE COURT OF APPEALS LUCAS 1997, plaintiffs Entry
On 27 June obtained an of Default from County Superior the Wake Assistant Clerk of Court defend- appear, plead, ant Lucas for failure to defend. otherwise Subsequently, County following hearing on 2 2001 in Wake Superior Court, judgment against Defendant Peacock obtained seventy-seven defendant Lucas for ($77,000). thousand dollars notified, present Defendant Lucas was not and was neither at the hearing represented by nor counsel.
On March plaintiffs’ complaint the court dismissed with prejudice activity hearing July 2001, lack of after the 2on *3 plaintiffs pay ordered court costs. Defendant Lucas was not present. February 2003, plaintiffs On 6 filed a Motion for Relief from Judgment 60(b) under Rule of the N.C. Rules of Civil Procedure. Narley Judge April 2003, Cashwell heard the motion on 6 and ordered the dismissal set aside and the case reinstated. Both defendants took exception ruling. to the
On 10 March 2003 defendant a Lucas filed Motion for Relief from July Judge required pay Allen’s 2001 order that him to Seventy-Seven Peacock ($77,000). Thousand Dollars May 2003, On 5 filed a Motion to Set Aside against the Default him entered on 27 June and also a filed Motion to Dismiss defendant Peacock’s Crossclaim. These motions pending. remain Summary
Plaintiffs Judgment filed Motion for Partial April defendant Peacock on 10 2003 based on Claim #5 of complaint Cutting their entitled “Unlawful a hearing of Timber” and Summary was held on 9 June 2003. The court entered Partial Judgment plaintiffs against both defendants for the Unlawful Cutting ruling upon of Timber. The was based of fact in the 12 against defendant Lucas. appeals. Defendant Lucas
II. Issues appeal (1) appeal by issues The on are whether: this defend- superior interlocutory; (2) granting ant Lucas is court erred in summary necessary party; if William Lucas was prior judgment void; was fact as there were issues of appeal damages. However, light of our conclusion that this interlocutory, any of should be dismissed as we do not reach remaining issues. THE COURT OF APPEALS
JOHNSON v. LUCAS Interlocutory Appeal III. partial summary initially appeal this from a
We consider whether properly this Court. Neither raised the issue judgment is before interlocutory properly Court, appeal before the of whether the is appealed is a final appellant asserted that the order from and the has interlocutory, that the record shows the order to be judgment. Given own motion. below, we address this issue on our as discussed appears granted that the trial court defend- It from the record partial summary judgment, leaving several ant’s motion “A final is one that deter- plaintiffs pending. claims still controversy parties, nothing to leaving entire between the mines the Mangum, Inc., in the trial court.” v. C.C. be decided Ratchford such, App. 197, 199, (2002). As the order summary interlocutory. Ordinarily, partial judgment is there granting interlocutory appeal right of immediate from an order. Travco is no Co., 288, 292, 420 Hotels, Inc. v. Piedmont Natural Gas trial court did The record indicates that the certify appeal pursuant 54(b) immediate to Rule not this case for the Rules of Civil Procedure. appellant
It well established that the bears the burden of show- is proper. First, when an is ing to this Court that the is *4 appellant grounds interlocutory, the must include its statement of support appel- appellate argument facts and for review “sufficient a ground challenged late on the that the order affects sub- review simply App. R, 28(b)(4). Here, R. right.” stantial Rule grounds appellate for review that the order asserts in its statement appeal interlocutory, judgment,” and, recognizing “is a final not as might appeal if this right does not address what substantial be lost Thus, appeal based on fail- does not lie. we could dismiss the comply requirement with of the Rules. ure to this carry addition, the burden of however, In defendant has failed to appel- why right. “It is the showing affects substantial accep- present appropriate grounds for this Court’s lant’s burden to interlocutory duty appeal, . . . and not the of this Court to tance of an support appellant’s right for arguments for or find construct Ry., App. 115, Thompson & Southern 140 N.C. appeal[.]” v. Norfolk quotation 121, 397, (2000) (internal citations 535 S.E.2d carry appellant fails to the burden of omitted). marks Where the court, appeal will dismissed. showing to the be making such Venture, 115 N.C. Jeffreys Raleigh Oaks Joint v. APPEALS THE OF COURT v. LUCAS no state- appellant’s brief here contains 252, (1994). The interlocutory order, appellate review of the grounds
ment of the will affected if we any right that substantial and no discussion Therefore, both because of time. review this order at this do not defendant’s comply 24(b)(4), Rule and for failure to with defendant’s appeal as inter- carry proof, we dismiss this its burden of failure to this that we should dismiss locutory. light In of our conclusion the merits of the issues. appeal, we do not reach Dismissed.
Judge BRYANTconcurs. separate opinion. in a
Judge TYSONdissents dissenting. TYSON,Judge appeal for defendant Lucas’s majority’s opinion dismisses
The of an appellate review grounds in his brief the failing to: state that will the substantial interlocutory appeal; discuss time. Neither reviewed at this if this is not be affected appeal in their interlocutory nature of this raised the issue of mero majority’s opinion that issue ex reached respective briefs. The applicable sufficiently argues the my view, defendant Lucas In motu. adversely this affected without would be rights that case, vacate the trial merits of the I to reach the review. vote Court’s proceedings. I further the matter for and remand judgment, court’s respectfully dissent. Interlocutory
I. Anneals pendency of an during the Interlocutory appeals “made are those it for fur- case, instead leave dispose of the but do not action which the entire con- and determine to settle the trial court ther action 522 S.E.2d Sharpe Worland, 351 N.C. troversy.” 2, 71, 73, Carriker, Carriker (1999) (quoting 357, 362, 57 Durham, City Veazey v. accord *5 (1999)); of (1950). 429 744, N.C. 59 S.E.2d reh’g denied, 232 377, 381, S.E.2d Appellate Procedure A. Rules of Appellate Procedure of Rules of the North Carolina 28(b)(4) Rule grounds of the include a “statement brief to requires appellant’s the Chicora (2004); see App. 28(b)(4) P. N.C.R. appellate review.” 520 IN THE COURT OF APPEALS
JOHNSON v. LUCAS 515 Country Club, Inc., et al. v. Erwin, Town 101, 105, 128 N.C. 797, 493 S.E.2d appeal If the is interlocutory, the state- ment must contain sufficient facts argument support and appellate review on grounds that challenged judgment either affects a substantial right, by or was certified the trial court for immediate appellate Jeffreys Raleigh review. Oaks Venture, Joint 115 N.C. App. 377, 379-80, 444 252, 254 (1994). specifically Lucas does not appellate address re- interlocutory
view of an in his grounds “statement of the appellate review.” argues He the trial court violated his constitu- tional due statutory summary when it entered judgment against him based on the of fact contained prior in a in a in case which he never received service process. Appellate Judgments Interlocutory
B. Review of Interlocutory may judgments only appealed in following two situations: certification the trial court for immediate review under N.C. Gen. 1A-1, Stat. 54(b); § Rule or (2) a substan- right appellant tial is affected. Tinch v. Video Industrial Services., 380, 381, 426, 493 S.E.2d (citing Bailey Gooding, 205, 209, 270 S.E.2d (1980)); N.C. Gen. Stat. §§ 1-277A and 7A-27(d) (2003). Here, the trial court certify did not its from which appeals defendant 54(b). under Rule Right
1. Substantial In determining whether a substantial right two-part is affected “a developed- test has right itself must be depri- substantial and the —the vation of that right potentially injury must plain- work if tiff not corrected before judgment.” from final Goldston v. Corp., American Motors 723, 726, 326 N.C. 392 S.E.2d (1990); 1-277A; N.C. Gen. Stat. § N.C. Gen. Stat. 7A-27(d). § Supreme adopted Our Court dictionary definition of “sub- “ stantial right” Stores, Oestreicher v. American Nat’l Inc.: legal ‘a right affecting involving a matter of distinguished substance as from matters right materially of form: a affecting those interests [person] preserved which is entitled protected by to have law: ” right.’ a material (1976) (quot- ing WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at (1971)). *6 521 APPEALS THE OF COURT
JOHNSON v. LUCAS (2005)] N.C. 515 [168 of Process a. Service “ requires that process of law’ right of The Constitutional ‘[d]ue him, proceeding against of the properly notified defendant shall be heard.” B-W present and to be opportunity to be and have an 570, 1, 10, 149 S.E.2d 577 Corp. Spencer, 268 N.C. Acceptance v. serve Peacock failed to parties stipulate that defendant The undisputed the also that with the crossclaim. It is defendant Lucas judgment that ruled on defend- from the 12 2001 findings of fact judgment basis of the 9 June 2003 were the ant Peacock’s crossclaim appeals. defendant Lucas from which 4 satisfy requirements of Rules
Defendant Peacock failed
proper service of
governing
Procedure
and 5 of the N.C. Rules of Civil
1A-1,
Stat.
1A-1,
(2003);
§
Rule 4
N.C. Gen.
process. N.C. Gen. Stat. §
Whitley,
v.
County Wayne ex. rel. Williams
(2003);
5
see also
Rule
of
may
458,
(an action
App. 155, 158,
(1984)
461
72 N.C.
323
securing
plaintiff
(1)
either:
continued
that defendant
time
for an extension of
upon
original
summons
an endorsement
may
an
process;
plaintiff
sue out
complete
of
or
service
days after the issuance
pluries
within 90
alias or
summons
endorsement).
previous
prior
summons
discontinued,
service,
the suit is
party fails to extend time
If a
Raleigh,
City
filed. Johnson v.
as if it had never been
and treated
of
denied,
851,
849,
disc. rev.
App. 147, 148-49, 389 S.E.2d
N.C.
98
Lassiter, 44 N.C.
(citing Hall v.
140,
S.E.2d 176
394
Without service
155,
(1979)).
158
App. 23, 26-27, 260 S.E.2d
County v.
jurisdiction. Columbus
has no
process,
the court
302,
(1959) (citing
607, 610, 107 S.E.2d
The
want of service
Lucas was discontinued
from defendant
ages
IN THE COURT OF APPEALS
JOHNSON v. LUCAS
process and is void as a matter of law. Locklear v. Scotland Memorial
*7
Hosp.,
App. 245,
247-48, 457
S.E.2d
(1995);
766
see
Bowman,
also
602-03,
Failure to review
judgment appealed
deprive
from would
defendant
an opportunity
protect
Lucas
his constitutional and sub-
stantial right
to due
of law and result in substantial financial
legal injury
to him. Defendant Lucas has shown that both a con-
stitutional and substantial right exist, which will be lost if not cor-
rected before
from final judgment.
Goldston,
See
b. Alternatively, defendant Lucas also argues entry of a mone- tary judgment, the appealed result of the judgment, further affects his rights. This Equitable Court held in Leasing Corp. v. Myers entry that a “trial summary court’s judgment monetary for a against sum defendant . . . affects ‘substantial right’ [a] of [the] defendant.” 46 N.C. 162, 172, 247 (1980) (citation omitted). The 9 June plaintiffs decreed are entitled to recover against defendants, jointly and severally, in the $77,000.00 amount of for the unlawful cutting Stipulated of timber. facts show that defendant Lucas mother, and his Jones, Lovie H. only $32,413.20 received proceeds from the sale of the timber. Both the award and the monetary amount of the against sum Lucas affect a substantial right and immediately appealable. are
Further, stay the trial court did not its pending resolu- tion of the remaining claims defendant Lucas and failed to rule on pending dispositive subjects motions. This defendant Lucas to immediate execution of the judgment. sufficiently
Defendant argued two substantial rights adversely that will affected without this Court’s immediate review of the case. The merits of presented by the issues ripe this are for resolution. APPEALS OF
IN THE COURT LUCAS Necessary Parties II. join failure to judgment is void for Lucas contends the Procedure. the N.C. Rules of Civil necessary party under Rule 19 of Lucas, his argues He William 1A-1, Rule 19 §
N.C. Gen. Stat. necessary protect his remainderman, is and the fifth brother disagree. in the case. I and interests interest in necessary claims a material party is one who has or
A will be controversy and whose interests subject matter of the Co. case. N.C. Monroe Constr. directly affected the outcome of the S.E.2d 818, 633, 638-39, County of Educ., 278 N.C. Bd. v. Guilford Corp. Skinner, (1971) (citing Gaither necessary party must be ascer Rights of the (1953)). *8 parties can be to the suit rights and settled before the tained 719, 724, 454, 457 Sneed, 187 S.E.2d Wallv. 13 N.C. determined. et al. v. Equitable Soc. United States (quoting Assur. of Life 347, (1951)). Basnight, 234 N.C. 67 390 par proper party, William but that his Lucas is a argue Plaintiffs protect his necessary required to either ticipation is not in the suit Proper parties are those Lucas’s and interests. or defendant case, by the but may affected the outcome of interests whose necessary N. Monroe Constr. go forward. C. presence is not whose Corp., 238 638-39, (quoting at 821 Gaither Co., N.C. at 278 256, 661). 77 S.E.2d at N.C. at will under his father’s equal remainderman
WilliamLucas was an
tenant, his
of the life
joint
upon the death
a
tenant
and became
Property will be
in the
While his interest
mother,
H. Jones.
Lovie
entry into
require his
outcome,
interest does not
by
that
affected
the
possible damages.
of
the case for determination
v.
issue in Winborne
a similar
Supreme Court addressed
Our
single
A
32,
Co.,
Should pro their will receive defendants, each remainderman claims Lucas. Their and William defendant Lucas share, including rata Property. I in the protect their interest separated to will be shares 524 IN THE OF APPEALS COURT v. LUCAS 515 N.C. proper necessary a would hold that William is but a not to this This assignment action. of error should be overruled. Tenancy
III. Life and Waste assignment Defendant Lucas’sfinal of error asserts the trial court partial summary granting genuine erred of when issues material I regarding damages. agree. fact exist the amount of damages First,
The two existence amount of rest on factors. partial summary judgment the 9 June awarding damages 2003 was July based on of fact in void 12 2001 judgment. This $77,000.00 damages. undisputed included the It is that the 12 is of void for lack service of on defendant Thus, damages against any, Lucas. amount Lucas, if properly was not determined.
Second,
all
plaintiffs’ complaint
the foundation of
claims in
may
asserts that
life tenant
sell
property
not
timber
from
with
out the
of all
sharing
pro
authorization
remaindermen and the
627,
v. Thomas,
631,
1032,
ceeds. Thomas
82 S.E.
41,
(citing Dorsey Moore,
44,
270,
(1888)).
6 S.E.
Plaintiffs
such
argue
impairs
behavior constitutes
waste
the sub
Dorsey,
stance of the inheritance.
Defendant Lucas contends this to him. In his Entry May Motion to Set Aside of Default filed on 5 which the upon, proceeds trial court did not rule asserts he the from the of sale given tenant, plaintiff the Jones, timber were to the life Lovie H. for Property. the of He argues again maintenance this issue on allegations to this This Court. defense to of waste also affects the damages. determination of complete
Both the failure to service of of the crossclaim by defendant Peacock and defendant Lucas’s defense to waste are questions calculating damages. argues of fact in his price $32,413.20, mother received the full contract of is while he $77,000.00 judgment plus liable under the void costs. of The issue question damages Corp. v. is a of fact. Olivetti Ames Business THE OF APPEALS COURT v. SNIPES
STATE reh’g by, 578, 586, denied Inc., 534, 548, Systems, issue material genuine Since of S.E.2d 92 was awarding damages exists, partial summary judgment fact Ltd., 294 Spanish Charlotte, Inns improper. Frank H. Conner Co. 1A-1,Rule § Stat. (1978); N.C. Gen. validity its is upon a void judgment that rests 56(d). A Clark, supra. vacate the trial court’s decision See I would itself void. opinion. this with proceedings for further consistent and remand Hearings for Defendant Lucas’s Motions IV. separate during for relief filed motions
Defendant Lucas three Judgment dated (1) this for Relief of of action: Motion course May Entry Default dated 5 2003; Motion to Set Aside of (2) March May 2003. dated 2003; and Motion to Dismiss Crossclaim pending, dispositive were filed Although motions these upon any were of the three ruled does not disclose whether record entry appealed judgment. prior to present case. of in the dispositive three are issues
All motions remand, motions should heard. Upon these
V. Conclusion sufficiently argued that his Defendant Lucas In this review the case. adversely affected without Court’s will be merits, (1) vacate the my I would: with discussion of accordance summary against defendant entry partial trial court’s findings of fact from void Lucas, it on as was based Lucas; remand jurisdiction without over entered respectfully I dissent. proceedings. for further this case v. PHILLIP LEE SNIPES NORTH CAROLINA STATE OF No. COA04-664 (Filed [15] February 2005) capac- plain error review —defendant’s Appeal and Error— 1. *10 ity proceed where the defend- cannot stand
Recognizing that a conviction Appeals himself, Court of capacity to defend ant lacks the plain apply under N.C.R. R its used discretion