Samia v. Ballard

25 N.C. App. 601 | N.C. Ct. App. | 1975

ARNOLD, Judge.

A threshhold question presented by this case is whether an order denying motion for directed verdict following a mistrial is appealable. We conclude that it is not appealable and that it is therefore subject to dismissal.

In a majority of jurisdictions which have considered this question, absent statutory provision to the contrary, orders of this kind have been held nonappealable. The decisions are primarily based on the reasoning that such orders are interlocutory and do not affect a substantial right of the movant. Compare Basciano v. Reinecke, 313 F. 2d 542 (2d Cir. 1963), and Dearborn Stove Co. v. Farmers Union Coop Gas & Oil Co., 304 F. 2d 273 (8th Cir. 1962), with Ford Motor Co. v. Busam Motor Sales, 185 F.2d 531 (6th Cir. 1950), and Dostal v. Baltimore & O. R. Co., 170 F. 2d 116 (3rd Cir. 1948). See also Annot., 40 A.L.R. 2d 1284 (1955) ; 2B Barron & Holtzoff, Federal Practice and Procedure, Civil § 1082, at 434 (1961) ; 9 Wright & Miller, Federal Practice and Procedure, Civil § 2540, at 612 (1971). When the court denies a motion for judgment n.o.v. and orders a new trial, there is no judgment from which to appeal. 5A J. Moore, Federal Practice ¶ 50.16, at 2387-88 (2d ed. 1974).

Immediately following the jury’s failure to agree on a verdict the appellant, pursuant to G.S. 1A-1, Rule 50(b) (1), moved for judgment in accordance with its earlier motions for directed verdict. Without question, appellant strictly complied with the procedural requirements of Rule 50. However, Rule 50 has nothing to do with broadening appellate jurisdiction. The scope of the court’s jurisdiction on appeal in this case is found in G.S. 1-277 and in Rule 4 of this Court.

There is no verdict or judgment from which to appeal, and there is no statute granting this Court jurisdiction to hear an appeal from an order such as was entered in this case. The order is not appealable.

Even though we hold that there is no right to appeal in this action, since the facts are not in dispute, and on the basis of the unambiguous lease agreement, we elect to treat the appeal as a petition for certiorari, which we grant.

Viewing the evidence in the light most favorable to plaintiffs we are of the opinion that defendant is entitled to judgment as a matter of law. See Summey v. Cauthen, 283 N.C. 640, 197 S.E. 2d 549 (1973) ; Burns v. Turner, 21 N.C. App. 61, 203 S.E. 2d 328 (1974). Although the parties to the lease may have contemplated that the premises would be used for a full-scale service station, with automobile repair facilities, Articles IV and V of the agreement clearly give the lessee the right to adapt the premises to any lawful business use. Gasoline sales have not decreased under the current operation of the premises, and plaintiffs have not been deprived of rental income.

There being no breach of the lease agreement, the trial court erred in denying defendant’s motion for a directed verdict. Since defendant made a timely motion for judgment in accordance with its motion for a directed verdict, we reverse the order appealed from and remand with directions to the trial court to enter judgment in defendant’s favor. G.S. 1A-1, Rule 50(b) (1) & (2) ; see Chavis v. Reynolds, 22 N.C. App. 734, 207 S.E. 2d 396 (1974); Nichols v. Real Estate, Inc., 10 N.C. App. 66, 177 S.E. 2d 750 (1970).

Reversed and remanded.

Chief Judge Brock and Judge Parker concur.