Ingle v. Allen

• Decision Date: 06 November 1984
• Docket Number: No. 8310SC1174,8310SC1174
• Citation: 321 S.E.2d 588,71 N.C.App. 20
• Parties: Beatrice Johnson INGLE v. Carnell Ingle ALLEN, Individually, Carnell Ingle Allen, Co-Executrix of the Estate of B.H. Ingle, Sr., Ruth Ingle Johnson, Individually, Carnell Ingle Allen and Ruth Ingle Johnson, Trustees Under the Will of B.H. Ingle, Sr., W.A. Johnson and Martha Ingle Currin.
• Court: North Carolina Court of Appeals

Page 588

321 S.E.2d 588

71 N.C.App. 20

Beatrice Johnson INGLE v. Carnell Ingle ALLEN, Individually, Carnell Ingle Allen,

Co-Executrix of the Estate of B.H. Ingle, Sr., Ruth Ingle

Johnson, Individually, Carnell Ingle Allen and Ruth Ingle

Johnson, Trustees Under the Will of B.H. Ingle, Sr., W.A.

Johnson and Martha Ingle Currin.

No. 8310SC1174.

Court of Appeals of North Carolina.

Nov. 6, 1984.

Tharrington, Smith & Hargrove by John R. Edwards and Elizabeth F. Kuniholm, Raleigh, for plaintiff-appellant.

Young, Moore, Henderson & Alvis, P.A. by Edward B. Clark and B.T. Henderson, II, Raleigh, for defendant-appellee W.A. Johnson.

HILL, Judge.

I

Did the trial court err in dismissing plaintiff's appeal of the granting of summary judgment as to the defendant W.A. Johnson? The defendant W.A. Johnson contends the appeal by plaintiff must be taken within 10 days after entry of summary judgment on 29 November 1982 to comply with Rule 3 of the North Carolina Rules of Appellate Procedure and G.S. 1-279; that no objection or exception to summary judgment was made in apt time as required by G.S. 1A-1, Rule 46(b); and that the record on appeal was not filed in the office of the clerk of court and served on defendant W.A. Johnson within 30 days after appeal as required by Rule 11 of the North Carolina Rules of Appellate Procedure. This argument may succeed only if plaintiff, when given the opportunity to appeal from an interlocutory order, must appeal therefrom, thereby delaying the jury trial of the remaining issues and forcing plaintiff at that time to choose either a fragmented appeal or a loss of the right to appeal as to the claim determined in the interlocutory order. We conclude for the reasons which follow that an immediate appeal was not mandatory, and therefore, the trial court erred in dismissing plaintiff's appeal of the granting of summary judgment.

"A final judgment is one which disposes of the cause to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950); see also G.S. 1A-1, Rule 54. An appeal of right exists from any final judgment of the superior court to the Court of Appeals. G.S. 7A-27(b). On the other hand, an interlocutory judgment or 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, supra at 362, 57 S.E.2d at 381. An appeal may be taken from an interlocutory order only when expressly allowed by the rules of civil procedure or by statute. G.S. 1A-1, Rule 54(b). G.S. 7A-27 and G.S. 1-277 allow an appeal from an interlocutory order when such an order affects a substantial right, in effect determines the action and prevents a judgment from which an appeal might be taken, discontinues the action, or grants or refuses a new trial. An appeal also may be taken from an interlocutory order where the trial court makes a determination that there is no just reason for delay. G.S. 1A-1, Rule 54(b).

Applying these basic tenets to the case under review, we find that entry of summary judgment as to defendant W.A. Johnson was not a final judgment because plaintiff's claims against all other defendants were not determined at the time of entry. See G.S. 1A-1, Rule 54(b). Hence, plaintiff had no appeal of right from the entry of summary judgment as to defendant W.A. Johnson because it was not a final judgment in the cause. However, plaintiff might have appealed under G.S. 7A-27 and G.S. 1-277 if she so elected. Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976). Plaintiff did not so elect to appeal, but chose to go to trial on the remaining claims against the other defendants. When the jury returned its verdict against the other defendants and the other defendants appealed, plaintiff elected at that time to cross appeal as to defendant W.A. Johnson pursuant to Rule 3 of the North Carolina Rules of Appellate Procedure.

Defendant W.A. Johnson argues that G.S. 1-277 has been interpreted to make an appeal allowed under that section mandatory. See Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967). If in fact the Nuckles case established that rule, it cannot now operate to bar plaintiff's appeal as to defendant W.A. Johnson for two reasons. First, the Nuckles case involved a special body of law--condemnation. Our Supreme Court, in interpreting G.S. 1-277, specifically relied on the special intent of G.S. 136-108, the condemnation statute involved. To allow appeal of the interlocutory order after trial of the action would have "completely thwart[ed] the purpose of G.S. 136-108." Id. at 14, 155 S.E.2d at 784.

Second, the enactment of Rule 54 of the North Carolina Rules of Civil Procedure overruled Nuckles to the extent that it would require an interlocutory appeal to be taken where such an appeal would be allowed by Rule 54 or any other rule or statute. Where summary judgment is entered as to fewer than all defendants, there is no final judgment. G.S. 1A-1, Rule 54(b). Although plaintiff in the case before us could have appealed the entry of summary judgment as to W.A. Johnson, she was not required to do so. This fact finds verification in the case of Lloyd v. Carnation Co., 61 N.C.App. 381, 301 S.E.2d 414 (1983).

In the Carnation case, the plaintiff filed suit against three defendants. The complaint contained seven claims, two of which were against two defendants only and five of which were against the third defendant. In January 1981, the court granted summary judgment on three claims, including the two solely against the two defendants. In January 1982, the plaintiff went to trial against the remaining defendant. At the close of his evidence, plaintiff took a voluntary dismissal as to the remaining defendant and gave notice of appeal as to the summary judgment entered for the other two defendants one year earlier.

On appeal, the defendants argued that plaintiff had lost his right to appeal as to them by failing to give notice of appeal within ten days of the entry of summary judgment in their favor in January 1981, one year before trial and dismissal as to the remaining defendant. This Court disagreed, saying that prior to the plaintiff's dismissal in January 1982, there was no final judgment and therefore "no procedural occasion which made it mandatory for the plaintiff to exercise his otherwise interlocutory right of appeal." Id. at 386, 301 S.E.2d at 417. Although plaintiff could have appealed the entry of summary judgment, he was not required to do so. Id. By choosing to proceed to trial as to the remaining defendant, he lost his right to have all defendants tried in one law suit but not his right to appeal. Id. at 387, 301 S.E.2d at 418.

Judge Braswell in Carnation defined with clarity the choices of the plaintiff:

By not exercising his procedural right to immediately appeal on 1 January 1981, plaintiff had to go on to trial as to one defendant only. He ran the risk, if successful on this appeal to have summary judgment reversed, of having to go to trial twice on similar subject matter claims. Plaintiff lost his right to have all three party-defendants tried together in one lawsuit.

Id. at 386-87, 301 S.E.2d at 417-18.

In effect, the question is not one of appeal or no appeal. Rather it is a choice between one or two trials. The case sub judice was finally disposed of on 14 December 1982, when the trial judge denied the defendants' motion for judgment notwithstanding the verdict, or in the alternative for a new trial. This constituted a final judgment because it finally disposed of all the claims of all the parties. The fact that plaintiff waived her right to appeal the order granting summary judgment to the defendant W.A. Johnson in no way affected her statutory right to appeal from the final judgment. Plaintiff served her notice of appeal on 23 December 1983, well within the 10 day period allowed under Rule 3(c) of the North Carolina Rules of Appellate Procedure and G.S. 1-279(c).

Defendant W.A. Johnson next argues that plaintiff has failed to preserve her exception to the entry of summary judgment in his favor and plaintiff has failed to comply with the rules of appellate procedure in filing and serving her proposed record on appeal. Defendant W.A. Johnson does not argue these points in his brief but neither does he abandon them. We have examined the record on appeal and find no error. We conclude that defendant W.A. Johnson was properly before the court.

II

In a supplemental brief, plaintiff contends the trial court erred in granting summary judgment for defendant W.A. Johnson because (1) there existed issues of material fact to be determined by the jury involving defendant W.A. Johnson's negligence as attorney, and (2) the evidence was sufficient to create an issue of material fact with regard to whether defendant W.A. Johnson owed a duty of care to the plaintiff and failed to exercise due care in the fulfillment of that duty. We find that summary judgment was properly granted.

Upon motion a summary judgment will be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). The party moving for summary judgment has the burden of establishing the absence of a triable issue of fact. His papers are meticulously scrutinized and all inferences are decided against him. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). In ruling on a motion for summary judgment, the court will not decide issues of fact. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980). "However, summary...