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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA12-1428 NORTH CAROLINA COURT OF APPEALS Filed: 4 June 2013 JOHN R. MINAR, Plaintiff, v. CAROLYN CLARK MURRAY, Defendant. Guilford County No. 10 CVD 1246

Appeal by plaintiff from order entered 7 June 2012 by Judge Susan R. Burch in Guilford County District Court. Court of Appeals 27 March 2013. Higgins Benjamin, PLLC, plaintiff appellant. by Stephen E. Robertson, for Heard in the

Hill Evans Jordan & Beatty, PLLC, by Elaine Hedrick Ashley, for defendant appellee. McCULLOUGH, Judge. John R. Minar ("plaintiff") appeals from an order of the trial court granting partial summary judgment in favor of

Carolyn Clark Murray ("defendant"). Because the order from which plaintiff substantial appeals right is of interlocutory plaintiff's and does not affect a

necessitating

immediate

appellate review, we dismiss his appeal.

-2-

I. Background On 26 May 2010, plaintiff and defendant entered into a Separation Agreement and Property Settlement Agreement (the

"Property Agreement"). Paragraph three of the Property Agreement addressed the parties' disposition of the marital residence.

Pursuant to the terms of this paragraph, defendant was required to either "refinance, obtain an assumption, or otherwise fully satisfy Mortgage, the so mortgage that owed in [plaintiff]'s is removed from name any to Chase

[plaintiff]

liability

therefore" within sixty days after execution of the Property Agreement. required Paragraph to three of the Property into Agreement her also

defendant

deposit

$40,000.00

attorney's

trust account, representing a "stipulated distributive award to [plaintiff] in exchange for his waiver of any marital right, title or interest in the marital residence." Paragraph plaintiff to three execute of a the Property Agreement or required deed

non-warranty

quitclaim

transferring sole title in the residence to defendant "at the refinance closing, which shall be held until any rescission

period is expired, or according to normal closing procedures." Paragraph three of the Property Agreement further provided that

-3"[i]n the event [defendant] rescinds the refinancing, or fails to qualify, or if for any reason the closing does not go

through, then the deed shall be returned to [plaintiff] and not recorded and the sale provisions shall then apply." three of the Property Agreement then detailed Paragraph specific

provisions for the sale of the residence "[i]f a refinancing closing does not occur within sixty (60) days after execution" of the Property Agreement. In addition, paragraph three of the

Property Agreement contained a provision requiring the parties to submit to quick notice arbitration in the event that "any dispute arises between the parties as to the listing or sale of the residence[.]" On 2 June 2010, defendant applied to refinance the existing mortgage on the residence through Edward Jones Mortgage, but defendant's application was denied on 23 June 2010. On 25 June

2010, defendant applied to refinance the existing mortgage on the residence through Carolina Farm Credit, and defendant's

application was ultimately approved on 26 May 2011. On 9 August 2010, following the expiration of the sixty-day period for performance under the Property Agreement, plaintiff sent defendant an Exclusive Right to Sell Listing Agreement

requesting defendant's signature to authorize listing and sale

-4of the residence by W.C. Thrift and Company, Inc. refused to sign the agreement. On 16 December 2010, plaintiff filed a verified complaint for breach of contract and specific performance, alleging that defendant had failed to refinance, obtain an assumption, or Defendant

otherwise fully satisfy the existing mortgage on the residence within the prescribed sixty-day time line pursuant to the

Property Agreement. failed to list the

Plaintiff further alleged that defendant home with a mutually agreeable realtor

pursuant to the sale provisions of the Property Agreement and that defendant had declined to participate in quick notice

arbitration on these issues. On 24 February 2011, defendant filed a verified answer, affirmative defenses, and counterclaims, and on 28 September

2011, following the trial court's grant of defendant's motion for leave to amend, defendant filed her second amended answer, affirmative defenses, and counterclaims. In her second amended

answer, defendant admitted that "as of the date of filing of Plaintiff's Complaint, she had been unable to refinance the

existing mortgage on the marital home despite her efforts to do so, and that the home had not been listed with a realtor." Defendant counterclaimed that plaintiff had breached the terms

-5of the Property in Agreement the a by (1) failing residence grill and to from refusing a bona to fide

cooperate purchaser,

selling

marital

(2)

removing

built-in

the

marital

residence, and (3) retaining the full amount of the income tax refund for the tax year 2010 for both federal and state returns. On 12 September 2011, defendant filed a motion for summary judgment, supported by her own affidavit and other supporting documents. On 26 January 2012, defendant filed an amended

affidavit and supporting documents in support of her motion for summary judgment. In her summary judgment motion, defendant

alleged that on 1 July 2010, plaintiff received a bona fide offer from defendant's that father her to purchase was the residence. for the

Defendant

alleged

father

pre-qualified

purchase of the residence by Envoy Mortgage on 15 July 2010. Defendant alleged that plaintiff refused to sell the residence to defendant's father, thereby thwarting her efforts to

otherwise satisfy the mortgage obligation within the sixty-day time frame imposed by paragraph three of the Property Agreement. In her affidavit, defendant stated that her father had made a bona fide offer to purchase the residence on 1 July 2010 "in order to help get the existing mortgage out of the Plaintiff's name pursuant to the [Property] Agreement[.]" In support of her

-6statement, defendant attached an Offer to Purchase Real Estate executed by her father. August 2010. However, this document was dated 25

In her affidavit, defendant further stated that

plaintiff refused to sell the residence to defendant's father, despite that defendant's "objective was to remove the

Plaintiff's name and interests from the Property pursuant to the [Property] Agreement and in a timely fashion." On 19 September 2011, plaintiff filed an affidavit in

opposition to defendant's motion for summary judgment, stating that the plain and unambiguous language of a of the Property on the

Agreement residence

required within

the

consummation time

closing which

the

sixty-day

period,

defendant

failed to do.

Plaintiff stated that multiple issues of fact

remained for determination by the trial court, including, inter alia, "whether the defendant was able to refinance, assume or otherwise satisfy the mortgage no later [than] July 25, 2010." On 25 April 2012, the trial court held a hearing on

defendant's summary judgment motion. On 7 June 2012, the trial court entered an order granting partial summary judgment in

favor of defendant. In its order, the trial court found as fact that "Defendant was unable to obtain refinancing of the property within the 60 day period; however, Defendant's father obtained a

-7commitment within for 60 financing day time would upon his purchase Such a of the residence to the the

that

period. remove the

transfer debt

Defendant's

father

mortgage

from

Plaintiff's name." The trial court further found that "Defendant advised Plaintiff of this commitment and her intent for her father to purchase the residence[,]" that "Plaintiff refused to sell the residence to Defendant's father[,]" that "Defendant

attempted to perform under the agreement and to `otherwise fully satisfy Mortgage' the mortgage 60 that owed days in [Plaintiff's] the name to of Chase the

within and

after

execution alone

Agreement[,]"

"Plaintiff's

actions

prevented

Defendant's compliance."

Accordingly, the trial court concluded

that "there is no genuine issue of material fact with respect to Defendant's tender of performance under the agreement for the disposition of the marital residence[,]" because "[t]he sale of the residence to Defendant's father would effectively remove the mortgage debt from the Plaintiff's name and would accomplish the clear objective of the provision." The trial court ordered

specific performance in favor of defendant for the transfer of title and payment of the mortgage debt on the residence and held defendant's arbitration. remaining counterclaims open pending compelled

On 6 July 2012, plaintiff entered notice of appeal

-8from the trial court's order granting partial summary judgment in favor of defendant. II. Dismissal of Interlocutory Appeal The trial court's order from which plaintiff presently As both

appeals is an order granting partial summary judgment.

plaintiff and defendant recognize, the trial court's order does not address defendant's two remaining counterclaims concerning plaintiff's removal of the built-in grill from the marital

residence and his retention of the income tax refund for the tax year 2010. "Any order resolving fewer than all of the claims between the parties is interlocutory." McCutchen v. McCutchen, 360 N.C.

280, 282, 624 S.E.2d 620, 622-23 (2006). Interlocutory orders are appealable before entry of a final judgment if (1) the trial court certifies [pursuant to N.C. Gen. Stat.

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