Bynum v. Wilson Cnty.

• Decision Date: 18 June 2013
• Docket Number: No. COA12–779.,COA12–779.
• Citation: 746 S.E.2d 296
• Court: North Carolina Court of Appeals
• Parties: Lois Edmondson BYNUM, Individually, and Lois Edmondson Bynum, Administratrix of the Estate of James Earl Bynum and Lois Marie Bynum, Plaintiffs v. WILSON COUNTY and Sleepy Hollow Development Company, Defendants.

746 S.E.2d 296

Lois Edmondson BYNUM, Individually, and Lois Edmondson Bynum, Administratrix of the Estate of James Earl Bynum and Lois Marie Bynum, Plaintiffs

v.WILSON COUNTY and Sleepy Hollow Development Company, Defendants.

No. COA12–779.

Court of Appeals of North Carolina.

June 18, 2013.

Appeal by defendants from order entered 19 March 2012 by Judge Milton F. Fitch in Wilson County Superior Court. Heard in the Court of Appeals 7 January 2013.

Thomas & Farris, PA, Wilson, by Albert S. Thomas, Jr., and Kurt Schmidt; and Narron & Holdford, PA, Wilson, by Ben L. Eagles, for Plaintiff-appellees.

Teague Campbell Dennis & Gorham, L.L.P., Raleigh, by Carrie E. Meigs and Leslie P. Lasher, for Defendant-appellants.

ERVIN, Judge.

Defendants Wilson County and Sleepy Hollow Development Company appeal from an order denying their motions for summary judgment with respect to the claims advancedagainst them by Plaintiff Lois Bynum, both individually and as administratrix of the estate of James Earl Bynum. On appeal, Defendant Wilson County argues that its appeal from the trial court's order denying its motion for summary judgment on governmental immunity grounds, although interlocutory, is properly before us and that it is entitled to immunity from suit in this case on the grounds that “operating and maintaining a county office building is a governmental function.” In addition, Defendants argue that, in order to “avoid a fragmentary appeal,” we should reach the merits of their non-immunity based challenges to the trial court's order, which rest on assertions that the evidentiary forecast presented to the trial court did not support a finding of negligence-based liability. After careful consideration of Defendants' challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court did not err by denying Defendant Wilson County's motion for summary judgment based on governmental immunity grounds and that we should decline to reach Defendants' other challenges to the trial court's order. As a result, we affirm the trial court's order in part and dismiss Defendants' appeals in part.

I. Factual Background

A. Substantive Facts

The factual basis underlying Plaintiffs' claims, to the extent that it is relevant to the issue properly before us at this time, was set out in our prior opinion in Bynum v. Wilson County, ––– N.C.App. ––––, 716 S.E.2d 90 (2011) (unpublished) ( Bynum I ), in which we stated that:

In January 2007, Defendant Wilson County moved its main office building to 2201 South Miller Road in Wilson. Wilson County leased the building in question from Defendant Sleepy Hollow Development Company....

On 15 April 2008, Plaintiffs James Earl Bynum and his wife, Lois Marie Bynum, drove to the Wilson County office building, in which the offices of Wilson County's water department were located, for the purpose of paying their water bill. Since Plaintiffs usually paid their water bill in person, they had visited the building on approximately thirteen previous occasions. While Mr. Bynum entered the building to pay the water bill, Mrs. Bynum remained in their car.

After climbing the front exterior steps, Mr. Bynum entered the building and ... paid the couple's water bill. After ... exiting the building, Mr. Bynum started down the front exterior stairs in order to return to the car where Mrs. Bynum was waiting. Approximately two-thirds of the way down the stairs, Mr. Bynum fell and sustained serious injuries.

Id., 2011 WL 3891361, at *1.

B. Procedural History

We also addressed the procedural history of this case in Bynum I, in which we stated that:

On 9 December 2008, Mr. Bynum filed a complaint in which he alleged that he had been injured as the result of Wilson County's negligence. On 2 January 2009, Wilson County filed an answer in which it denied the material allegations of Mr. Bynum's complaint and asserted a number of affirmative defenses, including a contention that Mr. Bynum's claims were barred by the doctrine of governmental immunity. On 30 July 2009, Plaintiffs filed an amended complaint in which they claimed to have been injured as the result of negligence on the part of Wilson County and Sleepy Hollow.

On 3 June 2010, Defendants sought summary judgment. On 14 October 2010, the trial court entered an order denying Defendants' summary judgment motions. Defendants noted an appeal to this Court from the trial court's order.

Bynum I, 2011 WL 3891361, at *2. As a result of the fact that Mr. Bynum died on 27 January 2011, Plaintiffs sought leave of court to substitute Mrs. Bynum, in her capacity as administratrix of Mr. Bynum's estate, for Mr. Bynum as a party plaintiff on 31 March 2011. This Court allowed the substitution motion on 15 April 2011. Id.

In Bynum I, we held that Defendant Wilson County's challenge to the denial of its summary judgment motion predicated on governmental immunity grounds affected a substantial right and was properly before us despite the interlocutory nature of the trial court's order. On the other hand, we held that Defendant Sleepy Hollow's appeal and Defendant Wilson County's challenge to the trial court's refusal to grant summary judgment in its favor with respect to more traditional liability-based issues involved a request for appellate review of an interlocutory order; that Defendants had not articulated any substantial right that would be jeopardized by a failure on our part to consider their non-immunity-related challenges to the trial court's order on an interlocutory basis; and that those portions of Defendants' appeals should be dismissed. After reaching the merits of Defendant Wilson County's challenge to the trial court's rejection of its governmental immunity defense, we observed that Defendant Wilson County had mistakenly submitted a different insurance policy from the one in effect at the time of Mr. Bynum's accident for consideration at the summary judgment hearing, refused to grant Defendant Wilson County's request that we permit the proper insurance policy to be substituted for the one that had been presented to the trial court, and allowed Defendant Wilson County's alternative motion to dismiss its appeal. As a result,

we h[e]ld that, with the exception of Wilson County's challenge to the trial court's refusal to grant summary judgment in its favor on governmental immunity grounds, Defendants' appeal ... is dismissed as having been taken from an unappealable interlocutory order. In addition, ... we deny Defendants' request that we allow an amendment to the record on appeal to include what Defendants claim to be the correct insuring agreement. Finally, we deny Defendants' request that this case be remanded to the trial court subject to certain instructions and allow Defendants' alternative motion for leave to withdraw their appeal.

Bynum I, 2011 WL 3891361, at *5.

On 23 December 2011, Plaintiffs filed a motion seeking leave to amend their complaint in order to assert a wrongful death claim.¹ On 16 February 2012, Defendants filed motions seeking the entry of summary judgment in their favor. On 19 March 2012, the trial court entered an order denying Defendants' summary judgment motions. Defendants noted an appeal to this Court from the trial court's order. On 13 July 2012, Plaintiffs filed a motion to dismiss Defendant Sleepy Hollow's appeal as having been taken from an unappealable interlocutory order.

II. Legal Analysis

A. Scope of Appeal

As a preliminary matter, we must identify the issues that are properly before us for appellate review. As was the case in Bynum I, Defendant Wilson County asserts, among other things, that the trial court erred by denying its motion for summary judgment based upon governmental immunity considerations. “This Court has held that appeals from interlocutory orders raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.” Williams v. Devere Constr. Co., Inc., ––– N.C.App. ––––, ––––, 716 S.E.2d 21, 25 (2011) (citing Price v. Davis, 132 N.C.App. 556, 558–59, 512 S.E.2d 783, 785 (1999) (other citations omitted)). As a result, Defendant Wilson County's challenge to the trial court's refusal to enter summary judgment in its favor on governmental immunity grounds is properly before us.

In addition, Defendants have also sought immediate review of the trial court's decision not to resolve Defendant Wilson County's non-immunity-related challenges and Defendant Sleepy Hollow's challenges to the trial court's order in their favor by denying Defendants' motion for summary judgment concerning these issues.² Defendants have not, however, articulated any substantial right that would be lost in the absence of immediate appellate consideration of these additional challenges to the trial court's order in their brief and we decline, as a general proposition, to sift through the record for the purpose of determining whether a particular trial court order does, in fact, affect a substantial right. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994) (stating that “[i]t is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order” and that “the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits”) (citations omitted). Although Defendant Sleepy Hollow's response to Plaintiffs' dismissal motion suggests that a failure to consider Defendants' non-immunity-related claims might create a risk of inconsistent verdicts, Hartman v. Walkertown Shopping Center, Inc., 113 N.C.App. 632, 634, 439 S.E.2d 787, 789 (stating that, where “dismissal of this appeal as interlocutory could still result in two different trials on the same issues, creating the risk of inconsistent verdicts, a substantial right...