Moose v. Nissan of Statesville, Inc.

• Citation: 444 S.E.2d 694,115 N.C.App. 423
• Decision Date: 05 July 1994
• Docket Number: No. 9319SC625,9319SC625
• Parties: Edward Wayne MOOSE, Plaintiff, v. NISSAN OF STATESVILLE, INC., Defendant, v. John GREEN, Executor of the Estate of Alga Green, Deceased, Third Party Defendant.
• Court: Court of Appeal of North Carolina (US)

Page 694

444 S.E.2d 694

115 N.C.App. 423

Edward Wayne MOOSE, Plaintiff, v. NISSAN OF STATESVILLE, INC., Defendant, v. John GREEN, Executor of the Estate of Alga Green, Deceased,

Third Party Defendant.

No. 9319SC625.

Court of Appeals of North Carolina.

July 5, 1994.

Wallace & Whitley by Michael S. Adkins, Salisbury, for plaintiff appellant.

Cranfill, Sumner & Hartzog by Robert W. Sumner and Robert H. Griffin, Raleigh, for defendant appellee Nissan of Statesville, Inc.

ARNOLD, Chief Judge.

Plaintiff's appeal from the trial court's order granting partial summary judgment is interlocutory. It "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 v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Generally there is no right to appeal from an interlocutory order. Id.

An interlocutory order may, however, be appealed by one of two avenues. First, where more than one claim for relief is presented in an action or the action involves multiple parties, and the court enters a final judgment as to one or more but fewer than all of the claims or parties, the judgment may be subject to review upon certification by the trial court that there is no just reason to delay the appeal. N.C.Gen.Stat. § 1A-1, Rule 54(b) (1990). In the case before us, plaintiff did not request, nor did the trial court supply, certification under Rule 54(b).

Despite the absence of certification by the trial court, a second avenue to appellate review is available if the interlocutory order qualifies under the provisions of N.C.Gen.Stat. § 1-277 (1983) and N.C.Gen.Stat. § 7A-27(d)(1) (1989). Oestreicher v. American National Stores, 290 N.C. 118, 225 S.E.2d 797 (1976). The most common application of these statutes arises in the issue of whether delaying the appeal will result in the prejudice of any substantial rights of the parties. 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). Thus, prior to our review of the merits of plaintiff's appeal, we must determine whether a substantial right will be prejudiced absent immediate appellate review.

It has been noted that "the 'substantial right' test ... is more easily stated than applied." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). The nebulous nature of the doctrine has become a particularly frustrating problem for this Court. Illustrative of this is the fact that despite an enormous period of time spent addressing this issue, two lines of cases regarding the guidelines for determining whether a substantial right has been affected have emerged from the decisions of our appellate courts.

In Oestreicher v. American National Stores, 290 N.C. 118, 225 S.E.2d 797 (1976), it was determined that regardless of the nature of the issues involved, a plaintiff had a substantial right to have all his causes against the same defendant(s) tried at the same time by the same judge and jury. See also Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); Narron v. Hardee's Food Systems, Inc., 75 N.C.App. 579, 331 S.E.2d 205, disc. review denied, 314 N.C. 542, 335 S.E.2d 316 (1985).

N.C.Gen.Stat. §§ 1-277 and 7A-27(d)(1) were later interpreted by the Supreme Court in Waters to require that the affected party's ability to enforce the substantial right absent immediate appeal must be lost before the doctrine could be applied. Waters, 294 N.C. 200, 240 S.E.2d 338.

In Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982), the Supreme Court further defined both holdings. First, the Green Court held that generally the right to avoid a trial is not a substantial right, but avoiding two trials on the same issues may be. The Court then created what we believe to be a two-part test by stating that "the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue." Id. at 608, 290 S.E.2d at 596. In other words, not only must the same issues be present in both trials, but it must be shown that a possibility of inconsistent verdicts may result before a substantial right is affected. Adapting this rule to the Waters requirement that the right in question be lost absent immediate review, the Green Court held that appellate review could be warranted in those instances where the right might be lost, prejudiced, or not fully and adequately protected by taking exception to the order's entry. Id.

Thus, cases which rely on Oestreicher have found substantial rights to be affected merely on the grounds of a party's right to have all claims or causes determined in one proceeding. Subsequent cases relying on Green require the appellant to demonstrate the possibility of inconsistent verdicts resulting from separate trials on the same factual issues. These discrepancies were addressed by this Court in detail in J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C.App. 1, 362 S.E.2d 812 (1987). In Slurry, while not expressly overruling the Oestreicher line of cases, this Court indicated its support for the Green line of cases requiring a showing that separate trials would result in the possibility of inconsistent verdicts, thereby prejudicing the substantial right in question, in order to warrant application of the substantial right exception. An examination of the cases to come after Slurry tends to show that this is the current path most often followed. See Taylor v. Brinkman, 108 N.C.App. 767, 425 S.E.2d 429, disc. review denied, 333 N.C. 795, 431 S.E.2d 30 (1993); 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); Lamb v. Lamb, 92 N.C.App. 680, 375 S.E.2d 685 (1989); Nance v. Robertson, 91 N.C.App. 121, 370 S.E.2d 283, disc. review denied, 323 N.C. 477, 373 S.E.2d 865 (1988); Vaughan v. Moore, 89 N.C.App. 566, 366 S.E.2d 518 (1988); Whitehurst v. Corey, 88 N.C.App. 746, 364 S.E.2d 728 (1988).

In the case before us, plaintiff relies on Oestreicher and its progeny to support the immediate appealability of an order granting defendant summary judgment as to punitive damages. For the following reasons, we feel it is time to establish the requirements contained in Green as controlling in its redefining of Oestreicher. Further, based upon the reasoning in Green, we take this opportunity to eliminate specifically the application of the doctrine of substantial rights to cases wherein partial summary judgment has been granted denying a claim for punitive damages.

First, we examine whether the facts before us dictate that plaintiff would be required to undergo separate trials on the same issues, and, if so, whether there is a possibility of inconsistent verdicts, should he be ultimately successful on the appeal of the summary judgment issue. We find he would not.

In order to establish liability on the part of defendant, plaintiff must show (1) that defendant was negligent, and (2) that defendant's negligence was the proximate cause of plaintiff's injury. Dixon v. Taylor, 111 N.C.App. 97, 431 S.E.2d 778 (1993). To prevail on a claim for punitive damages, plaintiff must show that defendant's established negligence which proximately caused his injury reached a higher level than ordinary negligence; that it amounted to wantonness, willfulness, or evidenced a reckless indifference to the consequences of the act. Ingle v. Allen, 69 N.C.App. 192, 317 S.E.2d 1, disc. review denied, 311 N.C. 757, 321 S.E.2d 135 (1984). Therefore, despite being based on the same facts, the issues before the jury are separate.

Because the issues are separate, there is no possibility of inconsistent verdicts should plaintiff prevail on a later appeal. If the jury at the initial trial determines that defendant was negligent and plaintiff is therefore entitled to compensation, a retrial on the issue of punitive damages wherein defendant's negligence has already been established, may be won or lost without inconsistency in the verdicts. Should plaintiff lose at trial on the issues of negligence and proximate cause, he would not be eligible for recovery based on punitive damages, and a significant amount of time and effort expended at the appellate level will have been avoided. Again, there is no possibility of inconsistent verdicts.

Nor will plaintiff's right to pursue punitive damages be lost, prejudiced, or not fully and adequately protected by taking exception to the order's entry. As stated above, if he is successful at trial on the issues of negligence and proximate cause, he may still proceed with the issue of punitive damages on retrial following a successful appeal. If plaintiff is unsuccessful at trial, he will have lost nothing in his pursuit of punitive damages, because the jury verdict...