Appeal by defendant from Britt, Judge. Order entered 5 January 1981 and judgment entered 6 January 1981 in Superior Court, Wake County. Heard in the Court of Appeals 5 April 1982.
Martin (Harry C.), Judge. Chief Judge Morris and Judge Clark concur.
Under the authority of Carr v. Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374 (1980), disc. rev. denied, 302 N.C. 217 (1981), a motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues. See also Biddix v. Construction Corp., 32 N.C. App. 120, 230 S.E.2d 796 (1977). This rule is based on the premise that no appeal lies from one superior court judge to another. Moreover, as pointed out in Carr, to allow and unending series of motions for summary judgment "would defeat the very purpose of summary judgment procedure, to determine in an expeditious manner whether a genuine issue of material fact exists and whether the movant is entitled to judgment on the issue presented as a matter of law." 49 N.C. App. at 634, 272 S.E.2d at 377.
The above-stated rule does not apply to interlocutory orders given in the progress of the cause. Id. Plaintiff contends that because it first moved for partial summary judgment on the issue of liability, the order denying the motion was interlocutory and the subsequent motion for summary judgment on the issues of liability and damages was properly granted. We disagree. "An order is merely interlocutory if it does not determine the issue but directs some further proceeding preliminary to a final decree." Id. at 633, 272 S.E.2d at 376 (emphasis ours). Whereas an order denying summary judgment on the issue of liability may be interlocutory in the sense that it is not immediately appealable, "[s]uch a ruling is determinative as to the issue presented." Id. In
his order denying plaintiff's motion for summary judgment, Judge Preston determined as a matter of law that plaintiff was not entitled to judgment on the issue of liability. Yount v. Lowe, 288 N.C. 90, 218 S.E.2d 563 (1975). The issue may not be relitigated by way of a second motion for summary judgment before a different judge. The trial court erred in granting summary judgment for plaintiff.
We believe that both the language and the policy behind N.C.R. Civ. P. 56 contemplate a single hearing on a motion for summary judgment involving the same case on the same legal issues. Rule 56(c) provides that judgment shall be rendered if pleadings and other supporting materials show that there is no genuine issue as to any material fact and "that any party is entitled to judgment as a matter of law." (Emphasis ours.) Rule 56(f) permits the opposing party to move for additional time to obtain affidavits or complete discovery essential to justify his opposition. Moreover, "[o]rdinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so." Conover v. Newton, 297 N.C. 506, 512, 256 S.E.2d 216, 220 (1979). Generally, motions for summary judgment should not be decided until all parties are prepared to present their contentions on all the issues raised and determinable under Rule 56. Piecemeal litigation of motions for summary judgment is to be avoided.
Defendant's Motion For Summary Judgment
Defendant argues that it is entitled to summary judgment based on the issue of ratification. We note at the outset that plaintiff is in error in assuming that defendant must have acted in a commercially reasonable manner before being permitted to take advantage of this defense. While it is true that a bank must act in good faith and in accordance with reasonable commercial standards in order to raise a negligence defense under N.C.G.S. 25-3-406, N.C.G.S. 25-3-404 does not require such a showing:
Unauthorized signatures. -- (1) Any unauthorized signature is wholly inoperative as that of the person whose name is signed unless he ratifies it or is precluded from denying it
(2) Any unauthorized signature may be ratified for all purposes of this article.
The facts of this case, in addition to raising issues of preclusion or estoppel, raise a separate issue of ...