Hoots v. Pryor

• Decision Date: 16 June 1992
• Docket Number: No. 9129SC149,9129SC149
• Citation: 106 N.C.App. 397,417 S.E.2d 269
• Court: North Carolina Court of Appeals
• Parties: Furman Anthony HOOTS and wife, Paula Hoots, Plaintiffs, v. Gary PRYOR, Champion International Corporation, a New York Corporation, and Public Service Company of North Carolina, Inc., a North Carolina Corporation, Defendants.

Page 269

417 S.E.2d 269

106 N.C.App. 397

Furman Anthony HOOTS and wife, Paula Hoots, Plaintiffs, v. Gary PRYOR, Champion International Corporation, a New York Corporation, and Public Service Company of North Carolina, Inc., a North Carolina Corporation, Defendants.

No. 9129SC149.

Court of Appeals of North Carolina.

June 16, 1992.

Waymon L. Morris, P.A. by Waymon L. Morris, Hendersonville, for plaintiffs-appellants.

Roberts Stevens & Cogburn, P.A. by Steven D. Cogburn and W.O. Brazil, III, Asheville, for defendant-appellee Champion Intern. Corp.

Stott, Hollowell, Palmer & Windham by Grady B. Stott and Martha R. Holmes, for defendant-appellee Public Service Co. of North Carolina, Inc.

JOHNSON, Judge.

This case arises from a motor vehicle accident which occurred when defendant Pryor attempted to drive his four-wheel drive vehicle along a cleared strip beside a gas pipeline ditch dug by defendant Public Service Company of North Carolina, Inc. (Gas Company). Plaintiff Hoots was a passenger in the vehicle and was seriously injured when the vehicle overturned on the steep uneven ground, trapping plaintiff underneath it. The land on which the accident occurred was owned by defendant Champion International Corporation (Champion). The excavation ditch and the cleared strip beside it were located on an easement sold by Champion to Gas Company for the purpose of the construction of a gas pipeline. The accident site was not far from other land, also owned by Champion, which was leased to the N.C. Department of Natural Resources and Community Development for use by the public.

Plaintiffs brought suit against defendant Pryor on 25 May 1989 and on 28 August 1990 amended their complaint to join defendants Champion and Gas Company. Defendants Champion and Gas Company filed motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Judge Owens, on 26 November 1990, in open court, allowed defendants' Rule 12(b)(6) motions and dismissed plaintiffs' claims as to them. On 28 November 1990, plaintiffs filed a motion for leave to amend their complaint as to defendants Gas Company and Champion. On 3 December 1990, Judge Owens signed an order granting the Rule 12(b)(6) motions as to each corporate defendant. This order was filed at 11:21 a.m. The dismissal did not affect plaintiffs' negligence claim against defendant Pryor, which remains. Later that same day (3 December 1990), plaintiffs' motion to amend was heard by Judge Washington who denied the motion, concluding, as a matter of law, that the dismissal of plaintiffs' complaint by Judge Owens had operated as an adjudication on the merits.

Plaintiffs appeal from Judge Owens' order granting defendants Champion and Gas Corporation's motion to dismiss and from Judge Washington's order denying plaintiffs' motion to amend their complaint.

I.

Plaintiffs appeal from two different orders. Initially, we must decide whether these appeals are interlocutory and should be dismissed.

THE APPEAL FROM THE RULE 12(b)(6)

DISMISSALS.

Champion and Gas Company argue that plaintiffs' appeal from the order granting their Rule 12(b)(6) motions is interlocutory and thus should be dismissed.

A judgment of a trial court is either interlocutory or is a final determination of the rights of the parties. G.S. § 1A-1, Rule 54(a) (1990). Interlocutory orders are those made during the pendency of an action which do not dispose of the case but leave it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950); Cook v. Bankers Life and Casualty Co., 329 N.C. 488, 406 S.E.2d 848 (1991) (granting of summary judgment in favor of one defendant does not finally determine all the claims in the case and is thus an interlocutory order). Interlocutory orders are normally not appealable. See Veazey, 231 N.C. 357, 57 S.E.2d 377. An appeal from a nonappealable interlocutory order is fragmentary and premature and will be dismissed. Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257 (1921). But under certain circumstances, an appeal of right lies from an interlocutory order and such appeal will not be dismissed. G.S. § 1A-1, Rule 54(b); G.S. §§ 1-277 (1983) and 7A-27(d) (1989).

Judge Owens' order dismissing plaintiffs' claims against Champion and Gas Company is an interlocutory order since it was made during the pendency of the action and it does not dispose of the case but leaves plaintiffs' negligence claim against defendant Pryor. Even though interlocutory, plaintiffs' appeal of Judge Owens' order will not be dismissed if either of two means of appealing interlocutory judgments applies. See Davidson v. Knauff Ins. Agency, 93 N.C.App. 20, 376 S.E.2d 488, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).

Under G.S. § 1A-1, Rule 54(b), when multiple parties are involved in an action, the court may enter a final judgment as to one or more but fewer than all of the parties. Such a judgment, though interlocutory for appeal purposes, shall then be subject to review if the trial judge certifies that there is no just reason for delay. Davidson, 93 N.C.App. at 24, 376 S.E.2d at 490. Here, the dismissal of defendants upon their Rule 12(b)(6) motions operates as a final judgment as to the cause of action against them but there is no certification in the dismissal order as to delay as required by Rule 54(b), thus there is no right of appeal under Rule 54(b).

Even though an interlocutory order cannot be appealed under Rule 54(b), an appeal is allowed if the provisions of G.S. §§ 1-277(a) and 7A-27(d) apply. Under these statutes, an appeal of right lies from an interlocutory order which prejudices "a substantial right." Whether or not a substantial right will be prejudiced by delaying an interlocutory appeal must be decided on a case by case basis. "It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which the appeal is sought is entered." Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982) (quoting Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)). The determination of appealability under the substantial right exception is a two step process. See J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C.App. 1, 362 S.E.2d 812 (1987). First, there must be a "substantial right" and second, "the enforcement of the substantial right must be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order." Id. at 6, 362 S.E.2d at 815.

In Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982) our Supreme Court stated that "the right to avoid the possibility of two trials on the same issues can be such a substantial right." Green, 305 N.C. at 606, 290 S.E.2d at 595. As explained in Davidson This general proposition is based on the following rationale: when common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn 'creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.'

Davidson, 93 N.C.App. at 25, 376 S.E.2d at 491 (quoting Green, 305 N.C. at 608, 290 S.E.2d at 596); see also Cook, 329 N.C. 488, 406 S.E.2d 848.

We find that under the facts of this case, plaintiffs' appeal is reviewable under the substantial right exception because a dismissal now would raise the possibility of inconsistent verdicts in later proceedings. Plaintiffs' claims against defendant Pryor sound in negligence. Plaintiffs' claims against Gas Company and Champion are based on their interest in the land and their duty to warn of hazardous conditions on the land. Gas Company alleges that defendant Pryor's actions constitute intervening negligence and that plaintiff Furman Hoots' conduct constitutes contributory negligence. It is conceivable that in a proceeding against defendant Pryor alone, the jury could find that plaintiff was contributorily negligent. If, in an appeal from that verdict, plaintiffs renew their appeal of the dismissal of defendants Gas Company and Champion and we were to find that the dismissal was improperly granted, then a second trial would be required as against these defendants. It is conceivable that at the second trial, plaintiff could be found not to have been contributorily negligent. See DeHaven v. Hoskins, 95 N.C.App. 397, 382 S.E.2d 856, disc. review denied, 325 N.C. 705, 388 S.E.2d 452 (1989).

Because of the possibility of inconsistent verdicts if this case were to be tried in two separate proceedings, we find that plaintiffs' appeal of Judge Owens' order is not premature and should not be dismissed.

APPEAL FROM THE DENIAL OF MOTION TO AMEND.

We now consider whether plaintiffs' appeal from Judge Washington's order denying their motion to amend is properly before this Court.

An appeal from the denial of a motion to amend a pleading is ordinarily interlocutory and not immediately appealable. Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (denial of motion to amend answer); Buchanan v. Rose, 59 N.C.App. 351, 296 S.E.2d 508 (1982) (appeal from denial of motion to amend answer is interlocutory and not immediately appealable unless it affects a substantial right); Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349 (1963) (rulings on motions to amend are not res judicata unless they involve a substantial right). As with any other interlocutory order, if the order affects a substantial right which the appellant would lose if the order or ruling is not reviewed before final judgment, it is...