Lamb v. Wedgewood South Corp.

• Decision Date: 31 May 1983
• Docket Number: No. 156A82,156A82
• Court: North Carolina Supreme Court
• Parties: Gwendolyn Hoffman LAMB, Executrix of the Estate of Thomas Wade Lamb v. WEDGEWOOD SOUTH CORPORATION, Statler Hilton, Inc., Hilton Inns, Inc., W.H. Weaver, W.H. Weaver Construction Company, Inc., Harry R. Dudley, Jr., Individually, Louis Rightmier, Individually, Thomas T.B. Morrisette, Individually, Dudley Rightmier, Morrisette and Associates, a Professional Association, Darrell Teague, W.E. Griffin and Ted Craddock.

Page 868

302 S.E.2d 868

308 N.C. 419

Gwendolyn Hoffman LAMB, Executrix of the Estate of Thomas Wade Lamb v. WEDGEWOOD SOUTH CORPORATION, Statler Hilton, Inc., Hilton Inns, Inc., W.H. Weaver, W.H. Weaver Construction Company Inc., Harry R. Dudley, Jr., Individually, Louis Rightmier Individually, Thomas T.B. Morrisette, Individually, Dudley Rightmier, Morrisette and Associates, a Professional Association, Darrell Teague, W.E. Griffin and Ted Craddock.

No. 156A82.

Supreme Court of North Carolina.

May 31, 1983.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James G. Billings, Raleigh, for plaintiff-appellant.

Spears, Barnes, Baker & Hoof by Alexander H. Barnes, Durham, for defendant-appellants Wedgewood South Corp. and Hilton Inns, Inc.

Emanuel & Emanuel by Robert L. Emanuel and George W. Kane III, Raleigh, for defendant appellees Harry R. Dudley, Jr., Louis Rightmier and Thomas H.B. Morrisette, individually, and Dudley, Rightmier, Morrisette and Associates, P.A.

EXUM, Justice.

The principal questions presented in this appeal involve the interpretation of General Statute 1-50(5) ¹ and whether the statute is constitutional. We conclude that the statute bars all claims asserted in this case against defendant architects and that the statute is constitutional. We also conclude that the Court of Appeals should not have considered certain denials of motions for summary judgment made by some defendants.

Plaintiff is the widow of Thomas Wade Lamb, M.D. and the duly appointed executor of his estate. Dr. Lamb was a registered guest at the Hilton Inn in Greensboro, North Carolina, on 25 August 1977. In the early morning of 25 August Dr. Lamb apparently became involved in an altercation on the sixth floor of the motel. Dr. Lamb either fell or was pushed through a panel glass window near the elevator on the sixth floor. He fell to the ground and died from injuries suffered in the fall.

In 1965-66 W.H. Weaver Construction Company, Inc., of which W.H. Weaver is the principal stockholder, both of which will be hereinafter referred to as Weaver, constructed the building housing the hotel. Dudley, Rightmier, Morrisette and Associates, an architectural firm in Virginia, designed the building. Wedgewood South Corporation (Wedgewood) purchased the building on 23 December 1966 and as a franchisee of Statler Hilton Inns, Inc., and later Hilton Inns, Inc. (Hilton Inns), operated Plaintiff filed this action for wrongful death on 20 June 1978 against Wedgewood, alleging negligent maintenance of the glass window and negligent failure to provide protective devices. After answering the complaint, Wedgewood on 25 August 1978 filed a third party complaint seeking either contribution or indemnification from Weaver, and the architects, Harry R. Dudley, Jr. and Louis Rightmier, individually. Wedgewood alleged that if it were negligent, then these additional defendants were primarily negligent in, respectively, constructing and designing the building. On 13 December 1978 Weaver answered Wedgewood's third party complaint and asserted crossclaims seeking either contribution or indemnification from the architects on the ground of negligent design. On 3 May 1979 Judge McKinnon in Orange Superior Court, allowed the architects' motion to dismiss all claims against them for lack of personal jurisdiction.

the hotel at the time of Dr. Lamb's death.

On 11 July 1979 plaintiff filed an amended complaint which incorporated by reference plaintiff's original claim against Wedgewood and asserted claims against: (1) architects Dudley, Rightmier, and Morrisette, individually, and "Dudley, Rightmier, Morrisette and Associates," for negligent design; (2) Weaver, for negligent construction; (3) Darrell Teague, a bartender in the hotel lounge and allegedly an agent of Wedgewood, Hilton Inns, and the operator of the hotel lounge, W.E. Griffin, for assaulting Dr. Lamb and negligently pushing him through the window; (4) Ted Craddock, the hotel's night manager, for negligently failing to intervene adequately in the altercation between Teague and Dr. Lamb; (5) W.E. Griffin, as Teague's principal under the respondeat superior doctrine; (6) Wedgewood as Craddock's and Teague's principal under the respondeat superior doctrine; and (7) Hilton Inns as franchisor of Wedgewood for negligent maintenance and on the theory that it was "estopped to deny" liability for the negligence of Teague and Craddock.

On 6 September 1979 Hilton Inns answered and crossclaimed against Weaver and the architects ² for indemnity or contribution. The architects moved to dismiss all claims against them, asserting lack of personal jurisdiction, insufficiency of process, and res judicata. Judge Brewer denied these motions to dismiss on 3 June 1980. Wedgewood, Hilton Inns, Craddock, Griffin and Teague moved for summary judgment; Judge Bailey denied these motions on 16 September 1980. On 22 September 1980 the architects moved for summary judgment on all claims against them. Judge Cornelius granted this motion on 3 November 1980 only as to plaintiff's claim on the ground that G.S. 1-50(5) barred her claim. Judge Cornelius denied, however, the motion as to Hilton Inns' crossclaim on the ground the crossclaim was not barred by the statute.

Plaintiff appealed to the Court of Appeals from the entry of summary judgment for the architects. The architects sought to appeal the denial of their motion for summary judgment as to Hilton Inns' crossclaim. Hilton Inns, Wedgewood, and Craddock excepted to Judge Bailey's denials of their motions for summary judgment, and cross-assigned this ruling as error.

The Court of Appeals reviewed not only Judge Cornelius' entry of summary judgment against plaintiff on her claim against the architects, but all denials of summary judgment as well. A majority of the Court of Appeals concluded: (1) The architects' motion for summary judgment on plaintiff's claim was properly granted and their motion on Hilton Inns' crossclaim should have been allowed on the ground that both claims were barred by G.S. 1-50(5); therefore, Judge Cornelius' denial of this motion as to the crossclaim was reversed and his allowance of the motion as to plaintiff's claim was affirmed. (2) Craddock's motion

for summary judgment should have been allowed since the forecast of evidence failed to show any negligence on his part; therefore, Judge Bailey's denial of this motion was reversed. (3) Wedgewood's and Hilton Inns' motions for summary judgment on plaintiff's claims [308 N.C. 424] were correctly denied by Judge Bailey on the ground that the forecast of evidence indicated plaintiff could make a prima facie case against these defendants; therefore, these rulings were affirmed. Judge Wells dissented from conclusions (1) and (2) on the grounds, respectively, that G.S. 1-50(5) was unconstitutional and the evidentiary forecast indicated plaintiff could make a prima facie case against Craddock.

I.

We first conclude that the Court of Appeals erred in reviewing the trial court's denials of the Craddock, Wedgewood, and Hilton Inns motions for summary judgment. "[T]he denial of a motion for summary judgment is not appealable." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978) (emphasis original); Motyka v. Nappier, 9 N.C.App. 579, 176 S.E.2d 858 (1970). Further, "if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves." Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980).

Apparently the Court of Appeals believed it should exercise its discretion in favor of reviewing these denials of summary judgment. We think this exercise of discretion was inappropriate for the same reason we declined to exercise our supervisory powers to review the trial court's order setting aside a summary judgment for the defendant in Waters v. Qualified Personnel, Inc., supra, 294 N.C. at 209, 240 S.E.2d at 344:

[The reason] is that the trial court and the parties will be given an opportunity to develop more fully the facts in this dispute and to put the merits of the claim in bolder relief than they now are. Even if defendant should ultimately lose at trial, an appeal at that point would give the reviewing court a more complete picture, factually and legally, of the entire controversy between the parties.... [A] fuller development of the facts in this case ... may well ... shed more light than we now have in this record ....

Plaintiff's claim against Craddock rests on his allegedly negligent acts. Her claims against Wedgewood and Hilton Inns rest on their allegedly negligent acts as well as their responsibility, under agency principles, for the acts of Craddock and Teague. Negligence claims are rarely susceptible of summary adjudication, and should ordinarily be resolved by trial of the issues. Vassey v. Burch, 301 N.C. 68, 73, 269 S.E.2d 137, 140 (1980). The disputed agency relationships here, particularly the relationship between Hilton Inns, as franchisor, and Wedgewood, as franchisee, are complex and need fuller factual development than we have in this record.

The Court of Appeals, insofar as the parties purported to appeal from the trial court's denials of the Craddock, Wedgewood and Hilton Inns motions for summary judgment, should have dismissed the appeals, and it should have declined to exercise its discretionary authority to review them. We vacate, consequently, the rulings of the Court of Appeals on these motions, without expressing any opinion on their merits.

The Court of Appeals correctly exercised its discretion to consider the denial of the architects' summary judgment motion as to the Hilton Inns' crossclaim. Although the trial court made the finding required under Rule 54(b) of the North Carolina Rules of Civil Procedure before a final judgment can be entered, i.e., "that there is no just reason for delay...