Mozingo v. North Carolina National Bank, 27 N.C. App. 196 (1975)

Oct. 15, 1975 · North Carolina Court of Appeals · No. 758SC305

27 N.C. App. 196

LARRY G. MOZINGO and Wife, KATHLEEN A. MOZINGO; and RIVERDRIVE APARTMENTS, INC. v. NORTH CAROLINA NATIONAL BANK

No. 758SC305

(Filed 15 October 1975)

Appeal and Error § 6; Rules of Civil Procedure § 54— adjudication of fewer than all claims — premature appeal

Attempted appeal from an order dismissing fewer than all of plaintiffs’ claims is premature where the trial court did not find that there is no just reason for delay.

Appeal by plaintiffs from Alms, Judge. Judgment entered 14 February 1975 in Superior Court, Pitt County. Heard in the Court of Appeals 25- August 1975.

Plaintiffs, Mr. and Mrs. Mozingo, filed a complaint against defendant for breach of contract. This claim was dismissed pursuant to Rule 12(b) (6) of the North Carolina Rules of Civil Procedure by order of the trial court, and the plaintiffs were given the opportunity to amend their complaint. In the amended complaint, plaintiffs assert three causes of action.

In their first cause of action, plaintiffs undertake to allege a contract and a breach thereof. In their second cause of action, plaintiffs undertake to allege fraud and damages therefor. In their third cause of action, plaintiffs undertake to allege another contract and a breach thereof. The trial judge allowed defendant’s Rule 12(b)(6) motion to dismiss the first and second causes of action. The third cause of action is pending for trial.

From the dismissal of the first and second causes of action, plaintiffs appealed.

Joseph F. Bowen, Jr.,, attorney for plaintiffs-appellants.

Everett <& Cheatham, by James T. Cheatham, attorneys for defendant-appellee.

BROCK, Chief Judge.

General Statute 1A-1, Rule 54(b) requires dismissal of this appeal because it is an attempted appeal from an order as to fewer than all the claims, and the trial court did not find that there is no just reason for delay. In such a situation, the order is subject to revision by the trial court at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. Newton v. Fire Ins. Co., 27 N.C. App. 163, 218 S.E. 2d 231 (1975) ; Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E. 2d 41 (1975), cert. denied 288 N.C. 241; Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

Appeal dismissed.

Judges Vaughn and Arnold concur.