An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-13
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014



NEWBRIDGE BANK (formerly LEXINGTON
STATE BANK),
     Plaintiff,

      v.                                      Davidson County
                                              No. 09 CVS 184
R.C. KOONTS and SONS MASONRY,
INC., DAVID CRAIG KOONTS, ROY
CLIFTON KOONTS, III, AND EDITH L.
KOONTS,
     Defendants.


      Appeal by defendants from orders entered 26 October 2012

and 2 July 2013 by Judge Theodore S. Royster, Jr. in Davidson

County Superior Court.            Heard in the Court of Appeals 6 May

2014.


      BIESECKER, TRIPP, SINK & FRITTS, L.L.P., by Roger S. Tripp,
      for plaintiff.

      Stephen E. Lawing for defendants.


      ELMORE, Judge.


      R.C. Koonts and Sons Masonry, Inc., David Craig Koonts, Roy

Clifton     Koonts,     III,     and    Edith     L.    Koonts     (collectively

defendants) appeal the 26 October 2012 order granting partial
                                       -2-
summary     judgment    in   favor     of     Newbridge         Bank    (plaintiff),

formerly Lexington State Bank (LSB), and the 2 July 2013 order

denying defendants’ motion for relief from judgment.                        For the

reasons stated below, we dismiss.

                                  I.      Background

      A brief summary of the relevant facts in the instant case

are   as   follows:      R.C.    Koonts      and   Sons    Masonry,       Inc.   (the

corporate defendant) executed a promissory note on 22 November

2004 (the 2004 Note) in favor of LSB for Loan No. 1203499-9015.

The principal amount of the loan was $417,306.14.                      The 2004 Note

consolidated      the        corporate         defendant’s             then-existing

indebtedness,    including      but    not   limited      to,    the    indebtedness

under a previous promissory note executed 22 April 2002 by the

corporate defendant in favor of LSB.                The 2004 Note listed a

maturity date of 2 June 2005.            However, the corporate defendant

extended the maturity of the 2004 Note to 2 August 2010 when it

executed a subsequent promissory note on 27 July 2005 (the 2005

Note).     The July 2005 Note specified that it was a renewal, not

a satisfaction, of Loan No. 1203499-9015.

      Defendants ceased making payments on the July 2005 Note in

May 2008.     Accordingly, plaintiff declared the remaining balance

on the 2005 Note of $396,257.72 immediately due and payable.
                                                 -3-
The record discloses that one or more of the defendants possibly

entered    into      a    Commercial         Security        Agreement     granting        LSB    a

security       interest        in    a    1997     Trail     King   Trailer         and   certain

inventory, accounts receivable, machinery, and equipment.                                    These

items     were      allegedly            pledged    as      collateral     to       secure      the

corporate       defendant’s          indebtedness,          whether      then       existing     or

thereafter arising.                It is further alleged that plaintiff did in

fact seize certain assets to secure the loan balance.

    On     5     October       2012,       the     parties      filed    cross-motions          for

summary    judgment           in    Davidson       County     Superior     Court.          On    26

October     2012,        the       trial     court       entered    an    order       partially

granting summary judgment in favor of plaintiff, finding that

defendants were jointly and severally liable on the 2004 Note,

renewed by the 2005 Note.                   The trial court also found that there

was a genuine issue of material fact as to the amount of damages

owed by each defendant to plaintiff.                         In that same judgment, the

trial   court       denied         defendants’         motion     for    summary      judgment,

which was premised on defendants’ argument that there was no

genuine    issue         of    material      fact      as    to   defendants’         claim     for

damages for the deterioration and detention of certain seized

assets.        On   7     November         2012,    defendants      filed       a    motion     for
                                        -4-
relief from the trial court’s 26 October 2012 order.                          The trial

court denied defendants’ motion in an order filed 2 July 2013.

       Defendants    appeal     the     26     October       2012     order       granting

partial summary judgment in favor of plaintiff and the 2 July

2013   order    denying    their      motion     for       relief     from    judgment.

Pursuant to Rule 54(b) of the North Carolina Rules of Civil

Procedure, the trial court certified both orders for immediate

appellate review, i.e., it found that there was no just reason

for delay of the entry of a final judgment.                       On 14 March 2014,

plaintiff moved to dismiss defendants’ appeal on grounds that

the orders from which defendants appeal are interlocutory and

therefore      not   subject    to     immediate       review        by    this    Court.

Alternatively,       defendants       argue    that        they     are    entitled     to

appellate review based solely on the fact that the trial court

certified its orders pursuant to Rule 54(b).

       “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     to     settle   and

determine the entire controversy.”                   Tridyn Indus., Inc. v. Am.

Mut. Ins. Co., 296 N.C. 486, 488, 251 S.E.2d 443, 445 (1979)

(quotation and citation omitted.)               “[A]n interlocutory order can

be immediately appealed if the order is final as to some but not
                                        -5-
all of the claims . . . and the trial court certifies there is

no just reason to delay the appeal [pursuant to North Carolina

Rules of Civil Procedure, Rule 54(b)].”              Tands, Inc. v. Coastal

Plains Realty, Inc., 201 N.C. App. 139, 142, 686 S.E.2d 164, 166

(2009) (citations and internal quotation marks omitted).                      Our

Supreme     Court   has     explained    that     “[w]hen    the    trial   court

certifies    its    order    for   immediate     appeal     under   Rule    54(b),

appellate review is mandatory.”               Id. at 142, 686 S.E.2d at 166

(2009) (citation and quotation omitted).               However, our Supreme

Court further clarified that, while we afford great deference to

a trial court’s certification pursuant to Rule 54(b), “the trial

court may not, by certification, render its decree immediately

appealable if [it] is not a final judgment.”                   Id. at 142, 686

S.E.2d at 166-67 (citation and quotation omitted).

            Notwithstanding   this  cardinal   tenet  of
            appellate practice, immediate 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. N.C.G.S. § 1A-1, Rule 54(b) (1990);
            DKH Corp. v. Rankin-Patterson Oil Co., 348
            N.C. 583, 585, 500 S.E.2d 666, 668 (1998);
            Oestreicher v. American Nat'l Stores, 290
            N.C. 118, 121-22, 225 S.E.2d 797, 800
            (1976).   When the trial court certifies its
            order for immediate appeal under Rule 54(b),
            appellate review is mandatory.    DKH Corp.,
                                        -6-
               348 N.C. at 585, 500 S.E.2d at 668.
               Nonetheless, the trial court may not, by
               certification, render its decree immediately
               appealable   if  “[it]   is   not   a   final
               judgment.”   Lamb v. Wedgewood South Corp.,
               308 N.C. 419, 425, 302 S.E.2d 868, 871
               (1983); see Tridyn Indus. v. American Mut.
               Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443,
               447 (1979) (“That the trial court declared
               it to be a final, declaratory judgment does
               not make it so.”). Second, immediate appeal
               is available from an interlocutory order or
               judgment   which   affects  a    “substantial
               right.” N.C.G.S. § 1-277(a) (1996); N.C.G.S.
               § 7A-27(d)(1) (1995); Bowden v. Latta, 337
               N.C. 794, 796, 448 S.E.2d 503, 505 (1994);
               Oestreicher, 290 N.C. at 124, 225 S.E.2d at
               802.


Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579

(1999).    “A final judgment is one which disposes of the cause as

to all the parties, leaving nothing to be judicially determined

between them in the trial court.”              Veazey v. City of Durham, 231

N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).

    In     the    instant   case,   the   trial       court’s    partial    summary

judgment order provides that defendants R.C. Koonts and Sons

Masonry, Inc., Roy Clifton Koonts, III, and David Craig Koonts

are jointly and severally liable to plaintiff on the issue of

liability and “that this action shall be tried by a jury on the

issue     of     the    amount   owed     by    the     [d]efendants        to     the

[p]laintiff.”          Therefore,   defendants     appeal       from   a   grant   of
                                         -7-
partial summary judgment which expressly settles the issue of

liability but leaves the issue of the amount owed by defendants

to    plaintiff    unresolved.         Neither    the   trial   court’s     partial

summary judgment order nor Judge Royster’s order denying relief

from partial summary judgment are final judgments.                         Instead,

both    orders    are   interlocutory       and   not   subject    to     immediate

appellate review.        See Steadman v. Steadman, 148 N.C. App. 713,

714, 559 S.E.2d 291, 292 (2002) (“It is well settled that a

judgment which determines liability but which leaves unresolved

the    amount    of   damages   is     interlocutory     and    cannot    affect   a

substantial right.”); see also Tridyn Indus. at 492, 251 S.E.2d

at 448 (holding that a partial summary judgment order entered in

favor of the plaintiff on the issue of liability, leaving for

further    determination        only    the    issue    of     damages,    is   not

immediately appealable by the defendant).

       Given that Judge Royster’s orders are not final judgments,

the trial court’s certification of them pursuant to Rule 54(b)

does not render them immediately appealable.                     In Tands, this

Court dismissed the defendant’s appeal as interlocutory, despite

the trial court’s certification for immediate review per Rule

54(b), “because the issues of overage rent and the amount of

plaintiff’s       potential     liability      (i.e.,    defendant’s       possible
                                -8-
damages award) remain[ed] unresolved[.]”      201 N.C. App. at 144,

686 S.E.2d at 167.     As in Tands, defendants in the instant case

have appealed from interlocutory orders which leave unresolved

the issue of defendants’ potential liability (i.e. defendants’

possible   damages   award).   Accordingly,   we   grant   plaintiff’s

motion to dismiss defendants’ appeal as interlocutory.



    Dismissed.

    Judges McGEE and HUNTER concur.

    Report per Rule 30(e).
