Howerton v. Grace Hosp., Inc.

• Decision Date: 15 October 1996
• Docket Number: No. COA95-1414,COA95-1414
• Citation: 124 N.C.App. 199,476 S.E.2d 440
• Parties: Philip T. HOWERTON, M.D., Ray M. Antley, M.D., and Blue Ridge Radiology Associates, P.A., Plaintiffs, v. GRACE HOSPITAL, INC., and Piedmont Medical Imaging, P.C., Defendants.
• Court: North Carolina Court of Appeals

Page 440

476 S.E.2d 440

124 N.C.App. 199

Philip T. HOWERTON, M.D., Ray M. Antley, M.D., and Blue Ridge Radiology Associates, P.A., Plaintiffs, v. GRACE HOSPITAL, INC., and Piedmont Medical Imaging, P.C., Defendants.

No. COA95-1414.

Court of Appeals of North Carolina.

Oct. 15, 1996.

Law Offices of Robert N. Meals, P.L.L.C. by Robert N. Meals, Seattle, WA; and Wayne M. Martin, Morganton, for plaintiff appellees.

Tate, Young, Morphis, Bach & Taylor, Morganton by Thomas C. Morphis, Hickory; and Patton Starnes Thompson Aycock Teele & Ballew, P.A. by Thomas M. Starnes, Morganton, for defendant appellants.

SMITH, Judge.

On 1 October 1990, plaintiffs filed a complaint in U.S. District Court, Western District of North Carolina seeking injunctive and monetary relief from defendants on claims for alleged violations of the Sherman Antitrust Act, Due Process violations and state claims. On 26 January 1993, plaintiffs voluntarily dismissed the pendent state law claims without prejudice. On 25 February 1993, defendant Grace Hospital moved for summary judgement. On 13 September 1993, U.S. Magistrate Judge J. Toliver Davis issued a memorandum and recommendation that defendant's motion for summary judgment be allowed. U.S. District Court Judge Lacy H. Thornburg adopted the recommendation of the magistrate and granted summary judgment for the defendants on 7 July 1995. Plaintiffs gave notice of appeal to the U.S. Fourth Circuit Court of Appeals from Judge Thornburg's order on 28 July 1995.

On 25 September 1992, plaintiffs filed a complaint in the case sub judice in the Superior Court Division of Burke County. Plaintiffs alleged breach of contract, violation of plaintiffs' rights of privacy, wrongful interference with business relationships, unfair and deceptive trade practices and civil conspiracy. Plaintiffs sought injunctive relief, a sum in excess of $10,000.00 in actual damages and a sum in excess of $10,000.00 in punitive damages. On 31 October 1994, defendant Grace made its first motion to stay the trial proceedings in the state action on the grounds that, without final resolution of the pending federal case, defendant Grace would be prejudiced because a final decision in the federal case would be res judicata and bar all issues in the state case. Defendant Piedmont Medical Imaging (PMI) made a motion to stay on the same grounds as that of defendant Grace. On 25 September 1995 and 5 October 1995, defendant Grace and PMI made second motions for stay of the trial proceedings. On 13 October 1995, defendants' motions were denied. From this denial, defendants appeal.

The trial court's denial of defendants' motions to stay is an interlocutory order from which no right to immediate appeal lies. We dismiss this appeal.

An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy. Cagle v. Teachy, 111 N.C.App. 244, 247, 431 S.E.2d 801, 803 (1993). There is generally no right to appeal an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). The purpose of this rule is " 'to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.' " Id. (quoting Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985)). However, there are two avenues by which a party may immediately appeal an interlocutory order or judgment. First, if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b), an immediate appeal will lie. Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253. Second, an appeal is permitted under N.C. Gen.Stat. §§ 1-277(a) and 7A-27(d)(1) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review. Id.

Defendants purportedly appeal the order denying their motion for a stay of the state court proceedings. Defendants cite no authority for the proposition that denial of a stay is appealable. We find no such authority in North Carolina. We do, however, find caselaw in other jurisdictions holding that the denial of a stay is not immediately appealable. General Motors Corporation v. Koscielski, 80 Md.App. 453, 564 A.2d 114 (1989); Grimme Combustion, Inc. v. Mergentime Corp., 385 Pa.Super. 260, 560 A.2d 793 (1989); Waterbury Teachers Assoc. v. Freedom of Information Commission et al., 230 Conn. 441, 645 A.2d 978 (1994); Federal Land Bank of Spokane v. L.R. Ranch Co., 926 F.2d 859 (9th Cir.1991). The denial of defendants' motions for stay did not dispose of any of the claims or parties, and the trial court did not and could not certify the case for immediate appeal pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b) (1990). Therefore, defendants must show that the trial court's decision deprives them of a substantial right which will be lost absent immediate review.

Defendants argue that they have the right to appeal from the interlocutory order, because the result of the federal appeal will have a preclusive effect in the state case under the doctrine of res judicata. The right to avoid the possibility of two trials on the same issues can be a substantial right that...