Curl v. American Multimedia, Inc.

• Decision Date: 18 December 2007
• Docket Number: No. COA07-444.,COA07-444.
• Citation: 654 S.E.2d 76
• Court: North Carolina Court of Appeals
• Parties: Lattice CURL and wife, Evelyn Curl, Lewis Boger and wife, Kathy Boger, Plaintiffs, v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., Inc., American Media International, LLC, American Media International, Ltd., Burlington Property, LLC, Bill and Peggy Britt Limited Partnership, Billy B. Britt, Peggy G. Britt, Defendants. Earl G. Brown, Emma L. Brown, Richard B. Evans, Peggy F. Evans, Catherine Ann Evans, Richard Tim Evans, Clarence Farrell, Kathryn Farrell, Robert Powell, Sr. and Ruth Maxine Powell, Plaintiffs, v. American Multimedia, Inc., AMI, A.M.I., Inc., American Media International, LLC, American Media International, Ltd., Burlington Property, LLC, Bill Limited Partnership, Billy B. Britt, Peggy G. Britt, Defendants.

654 S.E.2d 76

Lattice CURL and wife, Evelyn Curl, Lewis Boger and wife, Kathy Boger, Plaintiffs, v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., Inc., American Media International, LLC, American Media International, Ltd., Burlington Property, LLC, Bill and Peggy Britt Limited Partnership, Billy B. Britt, Peggy G. Britt, Defendants.

Earl G. Brown, Emma L. Brown, Richard B. Evans, Peggy F. Evans, Catherine Ann Evans, Richard Tim Evans, Clarence Farrell, Kathryn Farrell, Robert Powell, Sr. and Ruth Maxine Powell, Plaintiffs, v. American Multimedia, Inc., AMI, A.M.I., Inc., American Media International, LLC, American Media International, Ltd., Burlington Property, LLC, Bill Limited Partnership, Billy B. Britt, Peggy G. Britt, Defendants.

No. COA07-444.

Court of Appeals of North Carolina.

December 18, 2007.

Appeal by Plaintiffs from judgment entered 15 January 2007 by Judge W. Osmond Smith, III, in Alamance County Superior Court. Heard in the Court of Appeals 31 October 2007.

Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Mark E. Fogel, Raleigh, and Richard N. Watson, Durham; and Hopf & Higley, P.A., by James F. Hopf and Donald S. Higley, II, Greenville, for Plaintiff-Appellants.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King III, Greensboro, and Alexander Elkan; and Northern Blue, LLP, by J. William Blue, Jr., Chapel Hill, for Defendant-Appellees.

ARROWOOD, Judge.

This appeal arises from a lawsuit seeking damages for the contamination of Plaintiffs' wells with certain toxic chemicals. Plaintiffs appeal from entry of partial summary judgment. We affirm.

The Plaintiffs are individuals who are current or former residents of Hahn Road, in Burlington, North Carolina. Defendants are individuals and corporations with a present or former interest in property located near Hahn Road. Defendants' property has had soil and groundwater contamination with chlorinated solvents, including trichloroethene ("TCE") and tetrachloroethene ("PCE"), both of which are harmful to the human body. TCE and PCE contamination has also occurred in Plaintiffs' wells.

In March 2003 Plaintiffs filed suit against Defendants, alleging that Defendants were liable for contamination of their wells and asserting claims of negligence, negligence per se, strict liability under N.C. Gen.Stat. § 143-215.93, nuisance, trespass, and res ipsa loquitor. Based on these claims, Plaintiffs sought damages for medical expenses, pain and suffering, the increased likelihood of future disease, the cost of medical monitoring that was recommended as a result of Plaintiffs' increased risk of disease, their fear of future disease and diminished quality of life, the cost of remediation to their properties, the diminution in the value of their properties, and the cost of alternative water supplies.

On 11 December 2006 the trial court granted Defendants' motion for partial summary judgment, and dismissed all claims against Defendants David J. Forsyth and Jerry C. Jones, Jr., who are not parties to this appeal. In an order entered 15 January 2007, the trial court dismissed Plaintiffs' personal injury claims for monetary damages for medical expenses, medical monitoring, pain and suffering, diminished quality of life, the increased chances that Plaintiffs would contract serious illness, and claims based on allegations of psychic or emotional injury. The trial court denied Defendants' motion for entry of summary judgment on Plaintiffs' claims for property damages, including their claims of negligence, negligence per se, nuisance, trespass, res ipsa loquitor, and strict liability to the extent that they sought damages for diminution of property value, costs of remediation, costs of obtaining alternative water supplies, and other property damage. From this order, Plaintiffs have appealed.

Standard of Review

Preliminarily, we note that Defendants have filed several appellate motions. The first of these, Defendants' motion to amend the record in order to add the affidavit of Walter Beckwith, a geologist who worked with Defendants, is hereby granted. The second motion, seeking dismissal of Plaintiffs' appeal for violation of the Rules of Appellate Procedure, is denied.

Defendants' third motion, seeking dismissal of Plaintiffs' appeal as interlocutory, is also denied. "A judgment is either interlocutory or the final determination of the rights of the parties." N.C. Gen.Stat. § 1A-1, Rule 54(a) (2005). "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. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).

In the instant case, the trial court entered an order of partial summary judgment, leaving Plaintiffs' claims for property damage still pending. "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). However, after the entry of partial summary judgment, Plaintiffs dismissed their remaining claims against Defendants, pursuant to N.C. Gen.Stat. § 1A-1, Rule 41 (2005). N.C. Gen.Stat. § 1A-1, Rule 41(a)(1) (2005) provides in pertinent part that:

[A]n action or any claim therein may be dismissed by the plaintiff . . . by filing a notice of dismissal at any time before the plaintiff rests his case[.] . . . Unless otherwise stated . . . the dismissal is without prejudice[.] . . . [and] a new action based on the same claim may be commenced within one year after such dismissal[.] . . .

All the Plaintiffs dismissed their remaining claims; some did so without prejudice and others entered dismissals with prejudice. After entry of voluntary dismissal there was nothing further that the trial court could do in the case, although certain Plaintiffs retained the right to refile their claims within a year of entering dismissal. We find Combs & Assocs. v. Kennedy, 147 N.C.App. 362, 555 S.E.2d 634, (2001), to be instructive in this situation. In Combs, as in the instant case, the plaintiff took a voluntary dismissal without prejudice of its remaining claim. The Court held:

Ordinarily, an appeal from an order granting summary judgment to fewer than all of a plaintiff's claim is premature and subject to dismissal. However, since the plaintiff here voluntarily dismissed the claim which survived summary judgment, any rationale for dismissing the appeal fails. Plaintiff's voluntary dismissal of this remaining claim does not make the appeal premature but rather has the effect of making the trial court's grant of partial summary judgment a final order.

Id. at 367, 555 S.E.2d at 638. Citing several other cases, the Combs Court noted further that its holding:

comports with the procedural posture of appeals this Court has initially dismissed as being interlocutory and then subsequently heard on appeal following voluntary dismissals. In Whitford v. Gaskill, 119 N.C.App. 790, 460 S.E.2d 346 (1995), . . . the trial court granted partial summary judgment in plaintiff's favor. The defendant appealed and this Court dismissed the appeal as interlocutory[.] . . . [P]laintiff voluntarily dismissed her claim for damages. This Court then allowed the defendant's renewed appeal of the trial court's summary judgment order. Similarly, in Berkeley Federal Savings Bank v. Terra Del Sol, Inc., 119 N.C.App. 249, 457 S.E.2d 736 (1995), disc. rev. denied, 342 N.C. 639, 466 S.E.2d 276 (1996), the trial court granted the plaintiff [partial] summary judgment[.] . . . This Court initially dismissed defendants' appeal as interlocutory, only to allow the appeal following plaintiff's voluntary dismissal of its remaining claims.

Id. at 367-68, 555 S.E.2d at 639. We agree with the Court in Combs that our holding on this issue is in accord with precedent. Additionally in Brown v. Woodrun Ass'n, 157 N.C.App. 121, 577 S.E.2d 708 (2003), this Court ruled on an appeal in which:

[The] Superior Court . . . granted partial summary judgment in favor of plaintiffs on all issues other than damages. . . . [D]efendant appealed to this Court. We remanded the case to the lower court as interlocutory and not appealable because there were remaining factual issues to decide. . . . [P]laintiffs voluntarily dismissed their damages claim without prejudice[.] . . . Thereafter, defendant gave notice of appeal to this Court[.]

Id. at 123-24, 577 S.E.2d at 710; see also, e.g., Rouse v. Pitt County Memorial Hospital, 343 N.C. 186, 470 S.E.2d 44 (1996) (appeal of partial summary judgment dismissed as interlocutory by this Court, which subsequently hears appeal after plaintiff takes voluntary dismissals, both with and without prejudice, of remaining claims). We conclude that, following the dismissal of Plaintiffs' remaining claims, their appeal was no longer interlocutory.

Defendants, however, ask us to dismiss Plaintiffs' appeal as interlocutory, based on the holding in a recent case, Hill v. West, 177 N.C.App. 132, 627 S.E.2d 662 (2006). In Hill, following dismissal of plaintiffs' appeal from partial summary judgment as interlocutory, appellants took a voluntary dismissal without prejudice of their remaining claims against defendants. Plaintiffs then filed a second appeal, which this Court dismissed. Defendants herein argue that Hill compels dismissal in the instant case. We note, however, that Hill did not attempt to distinguish its holding from the significant body of case law holding contra. Moreover, the Court in Hill stated several reasons for the dismissal, including plaintiffs' repeated failure to comply with the North Carolina Rules of Appellate Procedure, and the Court's perception that the appellants were "manipulating the Rules of Civil Procedure in an attempt to appeal the 2003 summary judgment that otherwise would not be appealable." Id. at 135,...