Guthrie v. Conroy

• Decision Date: 06 August 2002
• Docket Number: No. COA01-740.,COA01-740.
• Citation: 567 S.E.2d 403,152 NC App. 15
• Court: North Carolina Court of Appeals
• Parties: Linda GUTHRIE, Plaintiff, v. Raymond CONROY and Clegg's Termite and Pest Control, Inc., Defendants.

567 S.E.2d 403

152 NC App. 15

Linda GUTHRIE, Plaintiff, v. Raymond CONROY and Clegg's Termite and Pest Control, Inc., Defendants.

No. COA01-740.

Court of Appeals of North Carolina.

August 6, 2002.

Patterson, Harkavy, & Lawrence, L.L.P., by Martha A. Geer, and Davis, Murrelle & Lyles, by Edward L. Murrelle, Beaufort, for plaintiff-appellant.

Kathryn P. Fagan, Carrboro, for defendant-appellants.

BIGGS, Judge.

Plaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg's Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part.

Plaintiff was employed in 1998 by defendant Clegg's Termite and Pest, Inc. (Clegg's), as a secretary. Defendant Conroy was plaintiff's co-employee, and worked for Clegg's as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg's, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to "put up with [her] condition." Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg's for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg's.

On 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg's; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys' fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff's claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants.

Motion to Dismiss Appeal

On 7 March 2001, plaintiff filed a motion "pursuant to rule 54(b) and rule 60," asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase "final judgment." Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase "final judgment." Plaintiff appealed from the amended order on 20 March 2001.

On 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff's appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appealable, and that plaintiff was required by N.C.R.App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree.

We note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a cross-assignment of error, defendants waived the right to move for dismissal of plaintiff's appeal. However, defendant's motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) ("if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question ... has not been raised by the parties themselves").

The summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff's claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C.App. 97, 551 S.E.2d 224 (2001) (order that leaves claims unresolved is interlocutory). An interlocutory order is subject to immediate appeal only under two circumstances: where the order is final as to some claims or parties, and the trial court certifies pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure that there is no just reason to delay the appeal, see Alford v. Catalytica Pharmaceuticals, Inc., ___ N.C.App. ___, 564 S.E.2d 267 (2002), or where the order deprives the appellant of a substantial right that would be lost unless immediately reviewed, see Turner v. Norfolk S. Corp., 137 N.C.App. 138, 141, 526 S.E.2d 666, 669 (2000).

Thus, if the trial court enters a judgment "which fully terminates" a claim or claims as to "fewer than all the parties," Rule 54(b) allows the trial court to "release it for immediate appeal before the litigation is complete as to all claims or all parties" by certifying that there is "no just reason for delay." Industries, Inc. v. Insurance Co., 296 N.C. 486, 490, 251 S.E.2d 443, 446-447 (1979). This is the mechanism by which the trial court expresses its determination that a final judgment should be subject to immediate appeal. Oestreicher v. Stores, 290 N.C. 118, 127, 225 S.E.2d 797, 803 (1976) (citation omitted) (trial court functions as a "dispatcher" and determines "the appropriate time when each `final decision' upon `one or more but less than all' of the claims in a multiple claims action is ready for appeal").

The trial court's 13 November 2000 summary judgment order states that "pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure, the undersigned Judge hereby finds that there is no just reason for delay in the plaintiff's taking an appeal from this Order." Plaintiff cites no cases holding that the trial court is also required to use the phrase "final judgment," and we find none. It is the resolution of a claim, rather than the phrase "final judgment" that determines whether an order is "final." Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) ("That the trial court declared it to be a final, declaratory judgment does not make it so."). Nor does N.C.G.S. § 1A-1, Rule 54 require the phrase "final judgment" to be included in a trial court's certification that an order resolving one or more claims is appropriate for immediate appeal:

(a) Definition. A judgment is either interlocutory or the final determination of the rights of the parties. (b) ... When 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[.]

N.C.G.S. § 1A-1, Rule 54(a) and (b).

The 13 November 2000 summary judgment order was a final judgment as to all of plaintiff's claims against Clegg's, and on all of her claims against Conroy, except for civil assault. Further, the trial court certified, pursuant to N.C.G.S. § 1A-1, 54(b) that there was "no just reason for delay," of an appeal from the order. We conclude, therefore, that the order was properly certified for immediate appeal.

Because the 13 November 2000 order was subject to appeal, plaintiff was required by N.C.R.App. P. 3(c)(1) to file notice of appeal within 30 days of entry of judgment, or no later than 13 December 2000. Plaintiff's notice of appeal, filed 20 March 2001, or 127 days after entry of the 13 November 2000 summary judgment order, was untimely, and subjects her appeal to dismissal. Herring v. Branch Banking & Trust Co., 108 N.C.App. 780, 424 S.E.2d 925 (1993). However, this Court will exercise its discretion and grant certiorari to review plaintiff's claims on their merits, pursuant to N.C.R.App. P. 21 (2001). See Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) ("Rule 21(a)(1) gives an appellate court the authority to review the merits of an appeal by certiorari even if the party has failed to file notice of appeal in a timely manner").

Standard of Review

Preliminarily, we note that plaintiff characterizes her suit as "a conventional sexual harassment case;" compares the conduct at issue to that "in other sexual harassment cases;" and asserts that defendant Conroy's alleged conduct "constitutes classic sexual harassment that should not be tolerated in any workplace." We therefore find it necessary to clarify the nature of the matters before us on review.

We recognize that the right to be free of sexual harassment in the workplace is addressed in certain federal statutes, e.g., Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (2001) (prohibiting discrimination in the "terms, conditions, or privileges of employment" on the basis of an employee's sex), and is implicated in our State declaration of public policy, N.C.G.S. § 143-422.2 ("It is the public policy of this State to protect ... the right... of all persons to seek, obtain and hold employment without discrimination or abridgement on account of ... sex"). A civil suit may be brought to redress, e.g., an alleged violation of Title VII, see Brown v. Henderson, 155 F.Supp.2d 502 (M.D.N.C.2000) (setting out elements of Title VII claim of hostile work environment caused by sexual harassment); Russell v. Buchanan, 129 N.C.App. 519, 500 S.E.2d 728, disc. review denied. 348 N.C. 501, 510 S.E.2d 655 (1998) (employee suit alleging violation of Title VII and N.C. public policy). Such claims focus on the impact of alleged behavior on the workplace, and require proof that the sexual harassment was "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, 532...