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IN THE SUPREME COURT OF NORTH CAROLINA
No.  27A98
FILED:  5 February  1999
CHARLES VERNON FLOYD, JR. AND SONS, INC.; MARY ANN FLOYD,
Individually; and MARY ANN FLOYD, Executrix of the Estate of
CHARLES VERNON FLOYD, JR.
v.
CAPE FEAR FARM CREDIT, ACA
Appeal by plaintiffs pursuant to N.C.G.S.  §  7A-30(2) from
the unpublished decision of a divided panel of the Court of
Appeals,  127 N.C. App.  753,  493 S.E.2d  499  (1997), affirming a
judgment entered by Herring, J., on  19 May  1995 in Superior
Court, Robeson County.    Heard in the Supreme Court  30 September
1998.
Stubbs & Perdue, P.A., by Trawick H. Stubbs, Jr., for
plaintiffs-appellants.
Everett, Warren, Harper & Swindell, by Edward J. Harper, II,
and Lewis H. Swindell, IV, for defendant-appellee.
MITCHELL, Chief Justice.
The sole question presented for review is whether the Court
of Appeals had jurisdiction to decide whether the trial court
erred when it granted defendant’s motion to compel election,
forcing plaintiffs to choose between their claims for breach of
contract and unfair or deceptive practices 1during the trial of
1
Although the record on appeal refers to this claim
alternately as  “unfair or deceptive trade practices” and  “unfair
trade practices,” we note here that the  1977 amendment to
N.C.G.S.  §  75-1.1 deleted the term  “trade” from the phrase  “trade
or commerce” and rewrote subsection  (b) to read:                       “For purposes
of this section,  ‘commerce’ includes all business activities,




this case.    The Court of Appeals held it was without jurisdiction
to determine this issue.    For the reasons that follow, we reverse
the decision of the Court of Appeals.
The record reveals that the following evidence was before
the trial court.    Charles Vernon Floyd, Jr., had been a prominent
farmer in Robeson County for more than thirty years.    Together
with his wife, Mary Ann Floyd, he ran a hog production business,
Charles Vernon Floyd, Jr. and Sons, Inc.    The Floyds had a
business relationship with defendant, Cape Fear Farm Credit, ACA
(hereinafter  “Farm Credit”), or its predecessors in interest
dating from the mid  1970s.    The Floyds obtained a line of credit
from defendant’s predecessor in interest which was originally
secured by a deed of trust on the corporate property.    Through
the years, the hog business struggled, and the Floyds were forced
to borrow more and more money just to stay in business.
Consequently, liens were placed on the Floyds’ personal residence
and a beach condominium to secure the additional debt.    In  1986,
the Floyds assumed substantial debts of their son, James Leroy
Floyd, adding to their extreme financial difficulties.
In December of  1991, the Floyds defaulted on the Farm Credit
loan.    In March of  1992, Farm Credit sent a letter to the Floyds
announcing its intention to foreclose on their farm and personal
residence if the total indebtedness was not paid in full within
however denominated, but does not include professional services
rendered by a member of a learned profession.”    N.C.G.S.  §  75-
1.1(b)  (1994).    This revision was intended to expand the
potential liability for certain proscribed acts.    See Talbert v.
Mauney,  80 N.C. App.  477,  343 S.E.2d  5  (1986).    In this opinion,
we will refer to this claim as  “unfair or deceptive practices.”




five days.    After an attempt to pay their arrearages failed, the
Floyds received a  “Notice of Sale” informing them that their
property was to be sold on  16 June  1992.
The Floyds met with an agent of Farm Credit on  3 June  1992
and negotiated a forbearance agreement whereby, in exchange for
additional security, Farm Credit would postpone the foreclosures
of the Floyds’ property and postpone publication of the newspaper
advertisements of the notice of sale.    However, despite this
agreement, a single advertisement of the foreclosure sale of the
Floyd home appeared in The Robesonian on  5 June  1992.
Following this turn of events, on  13 June  1992, Charles
Vernon Floyd, Jr., committed suicide.    Subsequently, Mary Ann
Floyd was appointed executrix of the estate of her husband and
together with her son, James Leroy Floyd, initiated this action
against defendant, Farm Credit, on  12 October  1992.    The
complaint asserted several causes of action against defendant
including wrongful death, intentional and negligent infliction of
emotional distress, loss of consortium, unfair or deceptive
practices, breach of the duty of good faith, and breach of
contract.    By order dated  6 January  1995, the trial court granted
summary judgment for defendant upon all claims except the
wrongful death, unfair or deceptive practices, and contract
claims.
During a trial by jury at the  17 April  1995 session of
Superior Court, Robeson County, defendant filed a motion to
compel election, seeking to require plaintiff Mary Ann Floyd,
individually and in her representative capacity, to elect whether




she would seek recovery for mental anguish damages arising from
breach of contract or seek recovery for alleged unfair or
deceptive practices.  2 On  1 May  1995, the trial court granted
defendant’s motion, and plaintiffs were forced to make an
election to pursue one or the other of their claims.    As a
result, plaintiffs abandoned their breach of contract claim and
elected to proceed instead on their claim for unfair or deceptive
practices.    At the close of the evidence, the trial court granted
defendant’s motion for directed verdict as to plaintiffs’
wrongful death claim.    The jury returned a verdict for defendant
on the unfair or deceptive practices claim, and on  19 May  1995,
the trial court entered judgment accordingly.
On  25 October  1995, plaintiffs filed a notice of appeal from
the trial court’s judgment based upon the jury verdict.    The
Court of Appeals affirmed the trial court, holding that the trial
court did not err when it failed to submit to the jury material
factual issues related to defendant’s breach of the forbearance
agreement.    Floyd v. Cape Fear Farm Credit,  127 N.C. App.  753,
493 S.E.2d  499  (1997).    Plaintiffs also sought appellate review
by the Court of Appeals of various orders entered by the trial
court.    The majority in the Court of Appeals concluded that it
did not have jurisdiction on appeal to review the issues raised
concerning such orders.    The Court of Appeals concluded that it
lacked such jurisdiction because the notice of appeal referred
solely to the trial court’s final judgment entered after the
2
We note that although the motion to compel election
referred solely to Mary Ann Floyd as plaintiff, the trial court’s
order simply required all plaintiffs to make their elections.




jury’s verdict and made no reference to other orders entered at
trial which plaintiffs sought to appeal.    The dissent concluded
that the Court of Appeals did not lack jurisdiction and that the
trial court’s order requiring an election should be addressed on
appeal.    On  8 July  1998, this Court denied plaintiffs’ and
defendant’s petitions for discretionary review.    Thus, the only
issue before us is the one brought forth by virtue of plaintiffs’
appeal as of right based upon the dissent.
In reaching its decision, the majority in the Court of
Appeals concluded that it lacked jurisdiction to review the trial
court’s order requiring plaintiffs to elect whether to proceed on
their unfair or deceptive practices claim or their breach of
contract claim.    The Court of Appeals relied on Rule  3 of the
North Carolina Rules of Appellate Procedure which provides in
pertinent part:                                                        “The notice of appeal  .  .  . shall designate the
judgment or order from which appeal is taken  .  .  .                  .”    N.C. R.
App. P.  3(d).    Plaintiffs gave notice of appeal from the judgment
entered by the trial court on  19 May  1995 but made no specific
reference to the earlier order compelling an election which had
been filed on  1 May  1995.    Because plaintiffs’ notice of appeal
referred only to the judgment entered by the trial court on
19 May  1995 and not to the earlier order compelling election, the
Court of Appeals determined that it did not have jurisdiction to
review the earlier order.    We disagree.
While Rule  3(d) of the North Carolina Rules of Appellate
Procedure is applicable, we do not find that it is




controlling here.                                                          “An interlocutory order is one made during the
pendency of an action, which does not dispose of the case, but
leaves it for further action by the trial court in order to
settle and determine the entire controversy.”    Veazey v. City of
Durham,  231 N.C.  357,  362,  57 S.E.2d  377,  381  (1950).    An order
requiring an election of remedies is such an order.    Ordinarily,
an interlocutory order is not immediately appealable unless the
order deprives the appellant of a substantial right which he will
lose if the order is not reviewed before the final judgment.    See
N.C.G.S.  §  1-277(a)  (1996); Adair v. Adair,  62 N.C. App.  493,
495,  303 S.E.2d  190,  192, disc. rev. denied,  309 N.C.  319,  307
S.E.2d  162  (1983).    Thus, a party seeking to appeal from a
nonappealable interlocutory order must wait until final judgment
is rendered and may then proceed as designated in Rule  3(d).
There is, however, another avenue by which an appellate
court may obtain jurisdiction to review an interlocutory order.
N.C.G.S.  §  1-278 provides:                                               “Upon an appeal from a judgment, the
court may review any intermediate order involving the merits and
necessarily affecting the judgment.”    N.C.G.S.  §  1-278  (1996)
(emphasis added).    However, N.C.G.S.  §  1-278 applies only to
those interlocutory orders which are not immediately appealable.
See Veazey,  231 N.C. at  362,  57 S.E.2d at  382; Gualtieri v.
Burleson,  84 N.C. App.  650,  655,  353 S.E.2d  652,  656, disc. rev.
denied,  320 N.C.  168,  358 S.E.2d  50  (1987).
In the instant case, the order compelling election of
remedies was entered on  1 May  1995, two days before the end of
the trial.    The record on appeal reflects that plaintiffs’ timely




objection to the order was overruled.    Further, we find that the
order did not deprive plaintiffs of any substantial right which
would be lost absent immediate appellate review.    Therefore, the
order compelling plaintiffs to elect remedies was interlocutory
and not immediately appealable.    See Travco Hotels, Inc. v.
Piedmont Natural Gas Co.,  332 N.C.  288,  291,  420 S.E.2d  426,  428
(1992); Moose v. Nissan of Statesville,  115 N.C. App.  423,  425,
444 S.E.2d  694,  696  (1994); Pitt v. Williams,  101 N.C. App.  402,
405,  399 S.E.2d  366,  368  (1991); Walleshauser v. Walleshauser,
100 N.C. App.  594,  595-96,  397 S.E.2d  371,  372  (1990).    Because
the election of remedies order deprived plaintiffs of one of
their claims, it involved the merits and affected the judgment.
“A nonappealable interlocutory order  .  .  . which involves the
merits and necessarily affects the judgement, is reviewable  .  .  .
on appropriate exception upon an appeal from the final judgment
in the cause.”    Veazey,  231 N.C. at  362,  57 S.E.2d at  382; see
Bailey v. Gooding,  301 N.C.  205,  270 S.E.2d  431  (1980); In re
Foreclosure of Allan & Warmbold Constr. Co.,  88 N.C. App.  693,
364 S.E.2d  723, disc. rev. denied,  322 N.C.  480,  370 S.E.2d  222
(1988); Shaw v. Pedersen,  53 N.C. App.  796,  281 S.E.2d  700
(1981).
As noted, plaintiffs duly objected to the election of
remedies order at trial and gave timely notice of appeal from the
19 May  1995 final judgment entered by the trial court.
Accordingly, pursuant to N.C.G.S.  §  1-278, we find that the
interlocutory order compelling election of remedies entered on
1 May  1995 was reviewable on appeal along with the final judgment




of  19 May  1995.    Furthermore, we note that it is quite clear from
the record that plaintiffs sought appeal of the election order.
The objection at trial to the election order properly preserved
the question for appellate review.    See N.C. R. App. P.  10(b)(1).
The challenge to the trial court’s order requiring plaintiffs to
make an election is designated in plaintiffs’ brief to the Court
of Appeals as assignment of error seven.    Although the election
of remedies order was not specifically mentioned in the notice of
appeal, we conclude that plaintiffs were entitled to appellate
review of this order.
For the foregoing reasons, we conclude that the Court of
Appeals had proper jurisdiction to review the order compelling
election of remedies.    We therefore reverse the decision of the
Court of Appeals and remand to that court for proceedings not
inconsistent with this opinion.
REVERSED AND REMANDED.
Justices MARTIN and WAINWRIGHT did not participate in the
consideration or decision of this case.

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