Real Property – Interlocutory Appeal – Restrictive Covenants – Injunction

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Barfield v. Matos. (Lawyers Weekly No. 10-16-0761, 11 pp.) (Linda Stephens, J.) Appealed from Mecklenburg County Superior Court (Robert C. Ervin, J.) N.C. App. Unpub.

Holding: A permanent injunction in a case involving restrictive covenants on real estate is interlocutory and does not meet the exceptions under which an interlocutory order is subject to appeal.

Facts

 Defendant/third-party plaintiff appeals a permanent injunction enforcing restrictive covenants on two parcels of land.

Third-party defendants were owners of a 34.5-acre tract of property in Mecklenburg and Cabarrus counties, and agreed to sell some of the property to defendant in 2005. Additional parcels of the property were sold to other parties, some of whom are now plaintiffs in the case and some third-party defendants.

The dispute revolves around whether restrictive covenants in place on some of the parcels are enforceable as to defendant’s property. Plaintiffs filed an action alleging defendant had breached the restrictive covenants and asked for injunctions. Defendant filed a counterclaim for rescission, negligent misrepresentation and breach of warranty; a motion to dismiss was filed but the record before us does not reflect the disposition of that motion.

The trial court later granted a motion for partial summary judgment, concluding that the restrictive covenants at issue do apply to and encumber defendant’s property. The court granted a motion for permanent injunction, enjoining defendant from taking any actions in violations of the restrictions and mandating that all structures on the properly in violation be removed.

On notice of appeal, the court stayed the part of the injunction that mandated removal of existing structures.

Interlocutory Order

Defendant states that grounds for appeal are that the order was a final judgment and that statutes provide a right of appeal from any final judgment of a superior court.

Our Supreme Court has defined a final judgment has one that “disposes of the cause as to all parties, leaving s nothing to be judicially determined between them in the trial court.” Although neither party addresses the issue, the permanent injunction is interlocutory, one made in the pendency of an action, which does not dispose of the case, but leaves it for further action.

Here, the trial awarded partial summary judgment but the record before us does not reflect any resolution of claims for monetary damages, alleged breach of covenant and negligent misrepresentation, among other claims.

According to G.S. § 7A-27(d), appeal from an interlocutory order is only available under certain circumstances, such as when a substantial right is affected. Grounds for appellate review are also set out in G.S. § 1-277(a), which provides that appeal can be taken from a judicial order which affects a substantial right, determines the action or grants or refuses a new trial.

Defendant does not cite either of these statutes as grounds for appellate review. While we acknowledge the injunction is a final order as to plaintiff’s claim for injunctive relief, it does not dispose of the controversy between the parties. It is not the duty of this court to construct arguments for appellants’ right to appeal from an interlocutory order.

Appeal dismissed.