Kennedy v. Polumbo

• Decision Date: 01 February 2011
• Docket Number: COA10–389.,Nos. COA10–586,s. COA10–586
• Citation: 704 S.E.2d 916
• Court: North Carolina Court of Appeals
• Parties: Rebecca KENNEDY and Charles L. Kennedy, Co–Administrators of the Estate of Emily Elizabeth May, Plaintiffs–Appellants,v.Danielle POLUMBO, Brandi Reaves, Carolina Hospitality of Florida, Inc. d/b/a Carolina Hospitality, Inc., Fayetteville Miyabi, Inc., ACS State & Local Solutions, Inc., and The City of Fayetteville, North Carolina, Defendants.Rebecca Kennedy and Charles L. Kennedy, Co–Administrators of the Estate of Emily Elizabeth May, Plaintiffs–Appellants,v.Danielle Polumbo, Brandi Reaves, Carolina Hospitality of Florida, Inc. d/b/a Carolina Hospitality, Inc., Fayetteville Miyabi, Inc., ACS State & Local Solutions, Inc., and The City of Fayetteville, North Carolina, Defendants.

704 S.E.2d 916

Rebecca KENNEDY and Charles L. Kennedy, Co–Administrators of the Estate of Emily Elizabeth May, Plaintiffs–Appellants,

v.Danielle POLUMBO, Brandi Reaves, Carolina Hospitality of Florida, Inc. d/b/a Carolina Hospitality, Inc., Fayetteville Miyabi, Inc., ACS State & Local Solutions, Inc., and The City of Fayetteville, North Carolina, Defendants.Rebecca Kennedy and Charles L. Kennedy, Co–Administrators of the Estate of Emily Elizabeth May, Plaintiffs–Appellants,

v.Danielle Polumbo, Brandi Reaves, Carolina Hospitality of Florida, Inc. d/b/a Carolina Hospitality, Inc., Fayetteville Miyabi, Inc., ACS State & Local Solutions, Inc., and The City of Fayetteville, North Carolina, Defendants.

Nos. COA10–586

COA10–389.

Court of Appeals of North Carolina.

Feb. 1, 2011.

OPINION TEXT STARTS HERE

Appeal by plaintiffs from judgments entered 18 November 2009 and 23 November 2009 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 1 November 2010.

James A. Davis & Associate, PLLC, Winston-Salem, by James A. David and Christopher D. Lane, for plaintiffs-appellants.

Robinson & Lawing, L.L.P., Winston-Salem, by Robert J. Lawing and H. Brent Helms, for defendant-appellee ACS State & Local Solutions.The Charleston Group, Fayetteville, by R. Jonathan Charleston and Jose A. Coker, and Graebe Hanna & Welborn, PLLC, Raleigh, by Mark R. Sigmon, for defendant-appellee City of Fayetteville.

MARTIN, Chief Judge.

Plaintiffs are the co-administrators of the Estate of Emily Elizabeth May, who died tragically during the early morning hours of 17 May 2007 as a result of injuries sustained when the automobile in which she was a passenger struck a utility pole. Plaintiffs filed suit alleging that Ms. May's death was proximately caused by separate acts of negligence on the part of Danielle Polumbo, the driver of the automobile; Carolina Hospitality of Florida, Inc., d/b/a Carolina Hospitality, Inc. (“Carolina Hospitality”), the operator of a nightclub where Ms. Polumbo and Ms. May had been patrons prior to the accident; Brandi Reaves, a bartender at that establishment; ACS State and Local Solutions, Inc. (“ACS”), the owner and operator of a red-light camera which was mounted on the utility pole and fell onto the automobile as a result of the collision; and the City of Fayetteville (“the City”). Only the plaintiffs' claims against ACS and the City are at issue in this appeal.

Both ACS and the City filed responsive pleadings denying, respectively, any negligence on their part and asserting affirmative defenses including, inter alia, the decedent's contributory negligence, the insulating negligence of other defendants, and the intervening negligence of other defendants. The City also asserted immunity. Both ACS and the City moved for summary judgment.

The materials before the trial court upon its hearing the motions for summary judgment tended, in summary, to show that Emily Elizabeth May and Danielle Polumbo were close friends and spent the evening of 16 May 2007 together in Fayetteville, having dinner at Miyabi's Japanese restaurant and then finishing their evening at Secrets Cabaret (“Secrets”), which is operated by Carolina Hospitality. Both Ms. May and Ms. Polumbo had been drinking alcohol throughout the evening.

Ms. May and Ms. Polumbo left Secrets sometime around 1:00 a.m. on 17 May 2007. Ms. Polumbo drove, and Ms. May rode in the front passenger seat of Ms. Polumbo's Ford Mustang. Within a few minutes after leaving the parking lot of Secrets, Ms. Polumbo was driving northbound on N.C. Highway 24, Bragg Boulevard, at Shannon Drive when she attempted to make a left-hand turn onto Sycamore Dairy Road. Unfortunately, Ms. Polumbo misjudged the turn, drove her car into the concrete median, and collided with a utility pole. A red-light camera was mounted on the utility pole and, upon impact, fell onto the roof of the Ford Mustang directly above Ms. May, who was struck by the collapsing roof.

At approximately 1:23 a.m., Officer W.D. Watson of the Fayetteville Police Department arrived at the scene and observed that Ms. Polumbo smelled strongly of alcohol, her speech was slurred, and she was unsteady on her feet. Ms. Polumbo was arrested and transported to the Cumberland County Jail. At the jail, Ms. Polumbo had problems balancing and following directions during a field sobriety test. Ms. Polumbo also took two breathalyzer tests at the jail and registered alcohol concentrations of .18 and .17, more than twice the legally permitted alcohol concentration. See N.C. Gen.Stat. § 20–138.1 (2009) (defining the offense of impaired driving as driving a vehicle upon a public roadway with an alcohol concentration of .08 or more). Meanwhile, Ms. May was taken to Cape Fear Medical Center where, unfortunately, she died as a result of her injuries. Ms. Polumbo subsequently pled guilty to felony death by motor vehicle, reckless driving to endanger, driving after consuming alcohol while under the age of 21, and driving while impaired.

The trial court granted summary judgment in favor of ACS by judgment dated 18 November 2009, and in favor of the City of Fayetteville by judgment dated 23 November 2009. Plaintiffs appeal from both judgments; their appeals have been consolidated by order of this Court entered 18 August 2010.

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I.

Defendants have moved to dismiss these appeals as (1) violating Rules 7(a)(1) and 7(b)(2) of the Rules of Appellate Procedure and (2) as interlocutory. With respect to defendants' contentions that plaintiffs' alleged violations of the Rules of Appellate Procedure mandate dismissal of their appeals, we note that “noncompliance with the appellate rules does not, ipso facto, mandate dismissal of an appeal.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 194, 657 S.E.2d 361, 363, on remand, 192 N.C.App. 114, 665 S.E.2d 493 (2008), disc. review denied, 363 N.C. 580, 681 S.E.2d 783 (2009). “Whether and how a court may excuse noncompliance with the rules depends on the nature of the default.” Id. Notably, “a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.” Id. at 198, 657 S.E.2d at 365. Neither Rule 7(a)(1) nor Rule 7(b)(2), which deal with the time and manner for ordering, preparation, and delivery of the transcript of the proceedings, are jurisdictional rule requirements. We will “not consider sanctions of any sort when a party's noncompliance with nonjurisdictional requirements of the rules does not rise to the level of a ‘substantial failure’ or ‘gross violation.’ ” Id. at 199, 657 S.E.2d at 366. “In such instances, the appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible.” Id.

With respect to the second ground for defendants' motion to dismiss the appeal, we agree that plaintiffs' appeals are from interlocutory orders, as their claims against the remaining defendants are still pending. See Myers v. Barringer, 101 N.C.App. 168, 172, 398 S.E.2d 615, 617 (1990) ( “Summary judgment granted to some but not all defendants is an interlocutory judgment.”). However, we may consider an immediate appeal from an interlocutory order if the order affects a substantial right of the appealing party. In re Estate of Redding v. Welborn, 170 N.C.App. 324, 328, 612 S.E.2d 664, 668 (2005). “A substantial right is affected when ‘(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.’ ” Id. (citing N.C. Dep't of Transp. v. Page, 119 N.C.App. 730, 735–36, 460 S.E.2d 332, 335 (1995)).

In the present case, the order granting summary judgment to ACS and the City terminates plaintiffs' action as to those defendants. However, plaintiffs' claims against the remaining defendants, including Ms. Polumbo, Ms. Reaves, and Carolina Hospitality, are still pending and some of the same factual defenses, including the contributory negligence of Ms. May, would apply to those defendants as apply to the present defendants. Thus, there is the possibility of inconsistent verdicts should we dismiss the present appeals and require plaintiffs to proceed to a final judgment against all defendants before considering their appeals from ACS and the City's granted summary judgment motions. See Estate of Harvey v. Kore–Kut, Inc., 180 N.C.App. 195, 198–99, 636 S.E.2d 210, 212 (2006). Under these circumstances, a determination of the underlying substantive appeal will, in our view, promote finality rather than fragmentation. We conclude that the appeals are, therefore, properly before us and deny the motions to dismiss.

II.

Turning to the merits of the appeal from the order granting summary judgment in favor of the City, plaintiffs argue that the trial court committed reversible error because there are genuine issues of material fact which preclude judgment as a matter of law. The standard of review of a trial court's order granting summary judgment is de novo. E.g., Nationwide Mut. Fire Ins. Co. v. Mnatsakanov, 191 N.C.App. 802, 805, 664 S.E.2d 13, 15 (2008).

“The purpose of summary judgment is to eliminate formal trial when the only questions involved are questions of law.” Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987). “A motion for summary judgment tests the legal sufficiency of a claim for submission to the jury. If the pleadings, depositions, interrogatories, ... admissions on file, [and affidavits] demonstrate that there is no genuine issue of any material fact and only questions of law exist, then summary judgment is proper.” Bolick v. Townsend Co., 94 N.C.App. 650, 652, 381 S.E.2d 175, 176, disc. review denied, 325 N.C. 545, 385 S.E.2d 495 (1989). Therefore, we must determine whether the pleadings, depositions, interrogatories and admissions on file, establish that summary judgment was warranted in this case.

The burden is on the movants to show the lack of...