Southern Uniform Rentals, Inc. v. Iowa Nat. Mut. Ins. Co.

• Decision Date: 19 July 1988
• Docket Number: No. 874SC1179,874SC1179
• Citation: 370 S.E.2d 76,90 N.C.App. 738
• Court: North Carolina Court of Appeals
• Parties: SOUTHERN UNIFORM RENTALS, INC., Plaintiff, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, and Hooker & Buchanan, Inc., Defendants.

Page 76

370 S.E.2d 76

90 N.C.App. 738

SOUTHERN UNIFORM RENTALS, INC., Plaintiff, v. IOWA NATIONAL MUTUAL INSURANCE COMPANY, and Hooker &

Buchanan, Inc., Defendants.

No. 874SC1179.

Court of Appeals of North Carolina.

July 19, 1988.

Ellis, Hooper, Warlick, Waters & Morgan by William J. Morgan and Amy R. Cummings, Jacksonville, for plaintiff-appellee.

Hedrick, Eatman, Gardner & Kincheloe by Ann Strader Tise and P. Scott Hedrick, Wilmington, for defendant-appellant Iowa Nat. Mut. Ins. Co.

No brief filed by Ward and Smith, P.A. by John A.J. Ward, for defendants Hooker & Buchanan, Inc.

WELLS, Judge.

The sole question for review is whether the interlocutory order denying defendant's Motion to Dismiss is properly before us. We hold that it is not and dismiss defendant's appeal as of right and deny defendant's petition for Writ of Certiorari.

An appeal of an interlocutory order will not lie to an appellate court unless the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 754 (1983); N.C.Gen.Stat. §§ 1-277 and 7A-27 of the N.C. Rules of Civil Procedure. An order is interlocutory if made during the pendency of an action, and the order does not dispose of the case but leaves its final resolution for further action by the trial court. Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980). Moreover, the determination of whether a substantial right is involved in the appeal depends on whether that right is one which will be lost or irremediably and adversely affected if the order is not reviewed before final judgment. Jenkins v. Maintenance, Inc., 76 N.C.App. 110, 332 S.E.2d 90 (1985).

In the present case, the trial court's denial of defendant's Motion to Dismiss clearly represents an interlocutory order. The decision to allow plaintiff's case to go forward is not a final determination of or resolution to the controversy. Additionally, despite defendant's contentions to the contrary, the adjudication of plaintiff's action does not affect any of defendant's substantial rights. In fact, denials of motions to dismiss for failure to state a claim are not appealable because they neither represent a final judgment nor do they affect a substantial right. Wright v. Fiber Industries, Inc., 60 N.C.App. 486, 299 S.E.2d 284 (1983). The refusal to dismiss an action generally does not or will not impair any of defendant's rights that could not be corrected on appeal after final judgment. Auction Co. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979).

Nevertheless, defendant vigorously argues that the legal expenses required in the defense to plaintiff's action will effect a waste of defendant's assets thereby affecting a substantial right. Defendant also claims that if the present case goes to trial and judgment is entered against defendant, such would amount to an interference with defendant's assets as it would create a lien against defendant's property in direct conflict with the rehabilitation and liquidation orders. We disagree.

Defendant cites the following language found in the orders which defendant claims is prohibitive:

Order Terminating Rehabilitation and Ordering Liquidation

and Declaring Insolvency, Polk County District Court, Iowa

6. All persons, corporations or associations are enjoined and restrained from commencing, maintaining or further prosecuting any action at law or in equity or any other...