in the Court of Appeals 9 January 2017.
by defendant from order entered 5 November 2015 by Judge
Gordon Miller in Forsyth County, No. 14 CVD 4220 District
Porter Vermitsky Fowler & Taylor PLLC, by John C.
Vermitsky, for plaintiff-appellee.
Woodruff Law Firm, P.A., by Carolyn J. Woodruff and Jessica
S. Bullock, for defendant-appellant.
Michael Kelley ("Defendant") appeals from the trial
court's denial of his motion for summary judgment. We
address the merits of Defendant's interlocutory appeal as
affecting a substantial right. We reverse the trial
court's order and remand.
Plaintiff and Defendant were married in 1982. They entered
into a Separation and Property Settlement Agreement upon
their separation in 1994 ("the 1994 agreement") and
divorced in 1999.
1994 agreement resolved issues of child support, alimony and
property settlement, and waived further claims of the parties
on the issues of alimony and equitable distribution. Article
XXXI of the 1994 agreement is entitled "Modification and
Waiver, " and states, "[m]odification or waiver of
any of the provisions of this Agreement shall be effective
only if made in writing and executed with the same formality
as this Agreement." Both parties' signatures were
affixed and notarized on the 1994 agreement.
2003, approximately nine years after the parties separated
and four years after their divorce, the parties purportedly
signed a document entitled "Part 1 Provisions for
Separation" ("the 2003 Amendment"). The 2003
Amendment is not notarized. Both parties were represented by
counsel when the 1994 Amendment was executed, but no
attorneys were involved on behalf of either party in the
execution of the 2003 Amendment.
July 2014, approximately eleven years after the parties had
signed the 2003 Amendment, Plaintiff filed suit against
Defendant and alleged breach of the 2003 Amendment. Defendant
filed a motion for partial summary judgment, and raised,
inter alia, the invalidity of the 2003 Amendment.
Plaintiff filed a cross-motion for summary judgment, which
trial court heard the parties' arguments over two days
and determined genuine issues of material fact existed
concerning both parties' claims. The court denied both
parties' motions for summary judgment. The order
specifically states the court found the 2003 Amendment was
"not void as a matter of law." This was the only
specific finding made by the trial court. The trial court did
not certify its order as immediately appealable under Rule
54(b). N.C. Gen. Stat. § 1A-1, Rule 54(b) (2015).
of summary judgment is interlocutory because it is not a
judgment that 'disposes of the cause as to all the
parties, leaving nothing to be judicially determined between
them in the trial court.'" Snyder v. Learning
Servs. Corp., 187 N.C.App. 480, 482, 653 S.E.2d 548, 550
(2007) (quoting Veazey v. City of Durham, 231 N.C.
357, 361-62, 57 S.E.2d 377, 381, reh'g denied,
232 N.C. 744, 59 S.E.2d 429 (1950)). Defendant acknowledges
his appeal is interlocutory, but argues the trial court's
denial of his motion for summary judgment affects a
substantial right and is immediately appealable under N.C.
Gen. Stat. §§ 1-277 and 7A-27(d). We agree.
Gen. Stat. § 1-277 provides:
(a) An appeal may be taken from every judicial order or
determination of a judge of a superior or district court,
upon or involving a matter of law or legal inference, whether
made in or out of session, which affects a substantial
right claimed in any action or proceeding; or which in
effect determines the action, and prevents a judgment from
which an appeal might be taken; or discontinues the action,
or grants or refuses a new trial.
N.C. Gen. Stat. § 1-277(a) (2015) (emphasis supplied);
see also N.C. Gen. Stat. § 7A-27(b)(3) (2015)
(providing for an appeal of right from an interlocutory order
which "[a]ffects a substantial right").
Court has heard interlocutory appeals where a defendant was
precluded from presenting affirmative defenses. See
Faulconer v. Wysong & Miles Co., 155 N.C.App. 598,
598-600, 574, S.E.2d 688, 690 (2002); Estate of Harvey v.
Kore-Kut, Inc., 180 N.C.App. 195, 198, 636 S.E.2d 210,
212 (2006) (noting that an order granting a motion to strike
is interlocutory). Here, the trial court's order states:
"The Court specifically finds that the contentions of
Defendant that the modification to the separation agreement
is void ab initio fail and that the Contract is not
void as a matter of law." Defendant argues the order
affects a substantial right, because the denial of his motion
for summary judgment "strikes an entire defense."
trial court found genuine issues of material fact exist,
which precluded summary judgment for either party. If the
order had stopped there, there would be no need to review
this order at this time on appeal. In fact, Plaintiff's
counsel noted as much when the trial court was announcing the
ruling and discussing the provisions of the order to be
[PLAINTIFF'S COUNSEL]: And, Your Honor, for the Appellate
Court purposes, just so everybody's aware, I'm going
to prepare both -- denying both parties' motions for
summary judgment because what Your Honor just ruled.
THE COURT: In essence, yes.
[PLAINTIFF'S COUNSEL]: And I'm going to do it the way
the Court of Appeals yelled at me last time because I
didn't do it and just say "Court finds there's
genuine issue" -- like just that statement and then
unsure which case Plaintiff's counsel perceived that this
Court "yelled" at him, and we doubt this Court
intended to "yell." However, counsel is correct
that an order denying summary judgment due to "genuine
issue as to any material fact" should not include any
"findings of fact." See Winston v. Livingstone
Coll., Inc., 210 N.C.App. 486, 487, 707 S.E.2d 768, 769
(2011) ("The order of the trial court granting summary
judgment contains findings of fact. The appellate courts of
this state have on numerous occasions held that it is not
proper to include findings of fact in an order granting
summary judgment."); N.C. Gen. Stat. § 1A-1, Rule
however, the trial court specifically directed the denial of
summary judgment order to include more, because "one
issue . . . controls all the others." The trial court
directed that the order include a finding and conclusion that
the 2003 Amendment was "not void as a matter of
THE COURT: I'll keep my comments to just the one issue
that I think controls all the others. I've already
commented on what I think the other pieces are and issues
that may or not exist. But I think all I need to really rule
on is whether or not this is void as a matter of law.
The Court finds that the contract is not void as a matter of
law and, therefore, denies the Defendant's motion. I --
I'm not going to rule in your favor, [Plaintiff], on the
others. I think you were wanting me to make determinations I
can't make. I guess, [Plaintiff's Counsel], you need
to draft the order, ...