Asher v. Huneycutt

Docket NumberCOA21-689
Decision Date02 August 2022
Parties Robert ASHER, Plaintiff, v. David HUNEYCUTT, Michael Kiser and Tracy Kiser, Defendants.
CourtNorth Carolina Court of Appeals

Green Mistretta Law, PLLC, by Robert A. Smith and Stanley B. Green, Raleigh, for plaintiff-appellant.

No brief filed for defendant-appellee David Huneycutt.

Martineau King PLLC, by Stephen D. Fuller and Joseph W. Fulton, Charlotte, for defendants-appellees Michael Kiser and Tracy Kiser.


¶ 1 Plaintiff Robert Asher appeals from the trial court's order granting Defendants Michael and Tracy Kiser's motion for summary judgment. After careful review, we affirm.


¶ 2 In 2013, Defendants purchased a rental property in Charlotte, North Carolina (the "House"). The House has three points of entry, all of which require the use of steps: the front door has brick steps, the back porch has a set of steps, and the garage has three wooden steps leading into the House (the "Steps").

¶ 3 Prior to purchasing the House, Defendants hired a professional home inspection company to evaluate the condition of the House and identify any potential problems. Although the inspection revealed several items throughout the House that warranted repair, the only issue that the inspector noted concerning the "steps, stairways, balconies and railings" was that "[t]here [wa]s a little play or movement of the handrail for the steps located in the garage." The inspection company recommended that the "handrail be properly tighten[ed] or re-secured[,]" which Defendants did before renting the House to tenants. Defendant Michael Kiser also stained the Steps and the adjacent handrail, but otherwise Defendants made no alterations to the Steps.

¶ 4 Defendants rented the House to the Rushing family from 2013 to 2015. The Rushings reported no issues with the Steps or the handrail during their tenancy, and Sylvia Rushing described the Steps and handrail as "always in stable and safe condition." After the Rushing family moved out in November 2015, Defendants rented the House to David Huneycutt, who lived there for approximately two and a half years. Huneycutt similarly had no complaints regarding the Steps. At his deposition, Defendant Michael Kiser explained that he conducts a visual inspection while walking through the House with new tenants when they first move in, and performs this same walkthrough and visual inspection process with the tenants upon the termination of a tenancy. Defendant Michael Kiser, like his tenants, also never observed any problem with the Steps.

¶ 5 On 21 May 2016, Plaintiff and his wife attended a graduation party hosted by Huneycutt at the House. Plaintiff's wife had been using a wheelchair for about a year and half at that time; she could only walk short distances due to a surgical procedure on her left foot. Having visited Huneycutt's home before, Plaintiff knew that his wife would need assistance entering and exiting the House. When they arrived, Huneycutt requested that Plaintiff and his wife use the Steps in the garage. Plaintiff's wife walked up the three Steps using only one foot, "which wore her out tremendously." Plaintiff later stated that he "had some concerns" about the condition of the Steps, but he did not voice his reservations that day.

¶ 6 When Plaintiff and his wife were ready to leave, Huneycutt asked that they exit through the garage rather than the front door to avoid disrupting the party. Then, without consulting Plaintiff or Plaintiff's wife, Huneycutt began maneuvering Plaintiff's wife down the Steps; he grabbed the legs of the wheelchair, tilted her back in the chair, and began moving her down one step at a time. Plaintiff, from the top step, grabbed the handles of the wheelchair in an attempt to stop Huneycutt, worried that his wife might get hurt. Upon realizing that he could not stop Huneycutt, Plaintiff grabbed his wife and put his arms around her head and neck, to "protect her from any injury going down the" Steps. When Huneycutt stopped moving the chair, Plaintiff lost his balance and fell down the Steps. He landed on a part of his wife's wheelchair, "and his left eye went into a cavity in the wheelchair brace." As a result of this fall, his optic nerve was severed, and Plaintiff lost all vision in his left eye.

¶ 7 Subsequent inspection by the parties’ experts revealed that the Steps did not comply with the applicable provisions of the North Carolina Residential Building Code. Specifically, the variance among the Steps’ heights was 1/4-inch greater, the threshold height from the floor was 1/4-inch higher, and the variance between each step's tread depth was 3/8-inches greater than the Code permitted; additionally, at least one tread had a 3.1% slope—1.1% greater than the maximum 2% slope that the Code permitted. See N.C. State Building Code, §§ 312.1, 314.2 (1997).1

¶ 8 On 22 April 2019, Plaintiff and his wife filed a complaint2 against Defendants and Huneycutt. Plaintiff asserted that Defendants were negligent per se , in that they leased a home with steps that violated the Building Code. He also alleged that Defendants were negligent because they breached their common-law duty as landlords to lease the House "in a habitable and reasonably safe condition ... by failing to install and/or maintain a garage staircase that was reasonable to prevent foreseeable falls."

¶ 9 On 8 July 2019, Defendants filed a motion to dismiss, an answer, and crossclaims against Huneycutt. Defendants generally denied liability and asserted several affirmative defenses, including contributory negligence. On 16 September 2020, Defendants filed a motion for summary judgment.

¶ 10 This matter came on for hearing in Mecklenburg County Superior Court on 11 January 2021. On 17 March 2021, the trial court entered an order granting summary judgment in favor of Defendants, finding that "there is no genuine issue of material fact in dispute as to the claims against" Defendants. Although there remained claims pending against Huneycutt, the trial court certified the case for immediate appeal, stating that "there exists no just reason for delay" and that "this order is entered as a Final Judgment [as to Defendants] pursuant to N.C. R. Civ. P. 54(b)."

¶ 11 Plaintiff timely appealed pursuant to Rule 3(c)(2) of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 3(c)(2). Subsequently, Plaintiff voluntarily dismissed his claims against Huneycutt on 1 July 2021, and Defendants voluntarily dismissed their crossclaims against Huneycutt on 12 July 2021.

Grounds for Appellate Review

¶ 12 This Court chiefly entertains appeals from final judgments. See N.C. Gen. Stat. § 7A-27(b)(1)(2) (2021). "A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham , 231 N.C. 357, 361–62, 57 S.E.2d 377, 381, reh'g denied , 232 N.C. 744, 59 S.E.2d 429 (1950). By contrast, "[a]n 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." Id. at 362, 57 S.E.2d at 381. Because an interlocutory order is not yet final, with few exceptions, "no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge[.]" N.C. Consumers Power, Inc. v. Duke Power Co. , 285 N.C. 434, 437, 206 S.E.2d 178, 181 (1974).

¶ 13 Nonetheless, an interlocutory order disposing of less than all claims in an action may be immediately appealed if "the order affects some substantial right and will work injury to [the] appellant if not corrected before appeal from final judgment[,]" Goldston v. Am. Motors Corp. , 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation omitted); see also N.C. Gen. Stat. §§ 1-277(a), 7A-27(b)(3)(a), or if "the trial court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason for delay of the appeal[,]" Turner v. Hammocks Beach Corp. , 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) ; see also N.C. Gen. Stat. § 1A-1, Rule 54(b).

¶ 14 It is well settled that a trial court's "[c]ertification under Rule 54(b) permits an interlocutory appeal from orders that are final as to a specific portion of the case, but which do not dispose of all claims as to all parties." Duncan v. Duncan , 366 N.C. 544, 545, 742 S.E.2d 799, 801 (2013). Rule 54(b) provides, in relevant part, that

[w]hen more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes.

N.C. Gen. Stat. § 1A-1, Rule 54(b). In other words, a proper Rule 54(b) certification of an interlocutory order requires: (1) that the case involve multiple parties or multiple claims; (2) that the challenged order finally resolve at least one claim against at least one party; (3) that the trial court certify that there is no just reason for delaying an appeal of the order; and (4) that the challenged order itself contain this certification. See id.

¶ 15 In the instant case, the trial court's order granting summary judgment in favor of Defendants is interlocutory, as it does not resolve all matters before the court. See Veazey , 231 N.C. at 362, 57 S.E.2d at 381. Nevertheless, the trial court's Rule 54(b) certification is effective to create jurisdiction in this Court: at the time of the order, the case involved multiple parties (Plaintiff, Huneycutt, and Defendants) with multiple claims and crossclaims; the order on appeal finally resolved all claims against Defendants (granting summary judgment in Defendants’ favor); the trial court certified that "there exists no just...

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