Oestreicher v. American National Stores, Inc., 27 N.C. App. 330 (1975)

Nov. 5, 1975 · North Carolina Court of Appeals · No. 7519SC522

27 N.C. App. 330

BERT W. OESTREICHER in her capacity as Trustee for RACHEL W. OESTREICHER (now RACHEL O. HASPEL) and DAVE OESTREICHER, II v. AMERICAN NATIONAL STORES, INC. a/k/a NATIONAL MANUFACTURE & STORES COMPANY, d/b/a JOHNSTON’S L & S FURNITURE COMPANY

No. 7519SC522

(Filed 5 November 1975)

Rules of Civil Procedure § 54— judgment adjudicating fewer than all claims — judgment not appealable

Plaintiff’s appeal from a judgment adjudicating fewer than all the claims asserted and which contains no determination by the trial judge that there is no just reason for delay is premature and is therefore dismissed. G.S. 1A-1, Rule 54(b).

Appeal by plaintiff from Seay, Judge. Judgment entered 26 March 1975 in Superior Court, Rowan County. Heard in the Court of Appeals 15 October 1975.

Plaintiff landlord brought this action against defendant tenant asserting three claims for relief: (1) a claim to recover damages “in excess of $10,000.00” because of defendant’s breach of the lease agreement in understating the amount of net sales upon which percentage rental was computed and paid; (2) a claim to recover punitive damages in the amount of $100,000.00 because defendant willfully and fraudulently reported the net sales to plaintiff over a continuing period of time and fraudulently failed to pay plaintiff amounts due under the percentage provisions of the lease; and (3) a claim to recover damages in the amount of $30,000.00 for defendant’s anticipated breach of the lease by threatening to vacate the premises prior to expiration of the lease. Defendant’s motion for summary judgment was allowed as to the second and third claims but was denied as to the first claim. Plaintiff appealed.

Carlton, Rhodes & Thurston by Richard F. Thurston and David Oestreicher II for plaintiff appellant.

Coughenowr & Linn by Stable Linn and William D. Kenerly for defendant appellee.

PARKER, Judge.

The judgment from which appeal is attempted adjudicates fewer than all of the claims asserted. It contains no determination by the trial judge that “there is no just reaason for delay.” The judgment is not final and not presently “subject to review either by appeal or otherwise.” G.S. 1A-1, Rule 54(b) ; Raynor v. Mutual of Omaha, 24 N.C. App. 573, 211 S.E. 2d 458 (1975) ; Leasing, Inc. v. Dan-Cleve Corp., 25 N.C. App. 18, 212 S.E. 2d 41 (1975), cert. denied, 288 N.C. 241 (1975) ; Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974).

Appeal dismissed.

Judges Morris and Martin concur.