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Whitehurst Inv. Props., LLC v. NewBridge Bank

Court of Appeals of North Carolina

October 21, 2014

WHITEHURST INVESTMENT PROPERTIES, LLC, Plaintiff,
v.
NEWBRIDGE BANK, and HENRY PROPERTIES, LLC, Defendants

Argued August 27, 2014

Heard in the Court of Appeals 27 August 2014.

James, McElroy & Diehl, P.A., by Preston O. Odom, III and John R. Buric, for plaintiff-appellee.

Carruthers & Roth, P.A., by Rachel S. Decker and J. Patrick Haywood, for defendant-appellant NewBridge Bank.

HUNTER, Robert C., Judge. Judges DILLON and DAVIS concur.

Page 488

Appeal by defendant NewBridge Bank from order entered 22 October 2013 by Judge James M. Webb in Guilford County Superior Court, No. 13 CVS 6888.

OPINION

HUNTER, Robert C., Judge.

Whitehurst Investment Properties, LLC (" plaintiff" or " Whitehurst" ) filed this action against NewBridge Bank (" NewBridge" ) and Henry Properties, LLC (" HP" ) (collectively " defendants" ), asserting claims for breach of contract, unjust enrichment, and declaratory judgment. NewBridge appeals from the trial court's order denying defendants' motion to dismiss.[1] On appeal, NewBridge argues that the trial court erred in denying the motion to dismiss because the doctrines of res judicata and collateral estoppel bar plaintiff's claims.

After careful review, we dismiss this appeal from the trial court's interlocutory order.

Background

On 5 December 2001, Starmount Company (" Starmount" ) and Henry James Bar-Be-Que, Inc. (" HJBBQ" ) executed a Ground Lease Agreement (" Ground Lease" ). Under the Ground Lease, Starmount assumed a landlord position, leasing to HJBBQ a 2.28 acre property (the " property" ) in Greensboro, North Carolina. The Ground Lease also provided that if the tenant decided to sublease the property, the Landlord (Starmount) would be entitled to any excess rent payments. HJBBQ contracted with NewBridge's predecessor in interest to finance construction of a building on the property, which was required under the Ground Lease. HJBBQ and NewBridge entered into a Leasehold Deed of Trust (" the Deed of Trust" ) as security for the loans made to HJBBQ. However, the Deed of Trust provided that NewBridge was entitled to any excess rents that may be produced by sublease. NewBridge entered into a Landlord's Consent agreement with Starmount, in which Starmount consented to this amendment to the Ground Lease.

Starmount sold the property to Whitehurst in December 2007, making Whitehurst the successor to all of Starmount's interests as landlord under the Ground Lease. In October and November 2008, Whitehurst forwarded notices of lease default to NewBridge. In August 2009, NewBridge created HP as its wholly owned subsidiary. HJBBQ then assigned its interest in the Ground Lease to HP through an Assignment in Lieu of Foreclosure, through which HP assumed every obligation as tenant under the Ground Lease.

HP was obligated to pay plaintiff $4,965.84 per month under the terms of the Ground Lease. On 20 August 2009, HP executed a sublease to another restaurant, REFS, LLC. Pursuant to the sublease, REFS agreed to pay HP rent in the amount of $9,500 per month from 20 December 2009 to 19 April 2010, later increasing to $14,000 per month from 20 April 2010 to 19 November 2010. The parties ...


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