Unigard Carolina Ins. Co. v. Dickens
| Decision Date | 01 May 1979 |
| Docket Number | No. 786DC644,786DC644 |
| Citation | 41 N.C.App. 184,254 S.E.2d 197 |
| Parties | UNIGARD CAROLINA INSURANCE COMPANY v. F. Marion DICKENS, Individually and as President of Dickens & Hux Awnings, Inc., and Dickens & Hux Awnings, Inc. |
| Court | North Carolina Court of Appeals |
Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for plaintiff-appellee.
Clark & Godwin by Charlie D. Clark, Jr., Roanoke Rapids, for defendants-appellants.
By this appeal the defendants attempt to obtain immediate appellate review of an interlocutory order of the trial court which accepted the jury's verdict fixing liability and directed there be a new trial solely on the issue of damages. We find the appeal premature and order it dismissed.
In Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), the opinion in which was filed on 5 February 1979, our Supreme Court held that an order of the trial court granting plaintiff's motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, and denying defendant's motion for summary judgment, was an interlocutory order not subject to immediate appeal. The defendants in the present case, after entry of the order from which they now attempt to appeal, were in precisely the same position as the defendant in Industries, Inc. v. Insurance Co., supra after entry of the order from which appeal was attempted in that case, albeit they had followed a different route to get there. In each case defendants were confronted with an order which fixed liability and retained the cause for determination solely on the issue of damages. In holding the order in Industries, Inc. not immediately appealable inasmuch as it was an interlocutory order which did not deprive defendant of any substantial right, our Supreme Court observed that "(e)ven if defendant is correct on its legal position, the most it will suffer from being denied an immediate appeal is a trial on the issue of damages." 296 N.C. at 491, 251 S.E.2d at 447. The same can be said of the defendants in the present case. The defendants here, as the defendant in Industries, Inc., can preserve the right to have appellate review of all trial court proceedings by duly entered exceptions on appeal from the final judgment. All reasons advanced by our Supreme Court in Industries, Inc. against permitting fragmentary, premature, and unnecessary appeals, apply with equal force in the present case.
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J & B Slurry Seal Co. v. Mid-South Aviation, Inc.
...7A-27(d) both provide independent grounds for appeal and should be analyzed accordingly); but see Unigard Carolina Insurance Co. v. Dickens, 41 N.C. App. 184, 254 S.E.2d 197 (1979) (holding order granting partial new trial was not appealable under Section 1-277(a) since did not deprive defe......
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LaFalce v. Wolcott
...or refuses a new trial."). Johnson v. Garwood, 49 N.C.App. 462, 463, 271 S.E.2d 544, 545 (1980); Unigard Carolina Ins. Co. v. Dickens, 41 N.C.App. 184, 186-87, 254 S.E.2d 197, 198 (1979) (jury verdict on liability allowed; grant of new trial on damages not immediately appealable); accord Ba......
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Murphy v. Dombrose, No. COA02-1652 (N.C. App. 2/17/2004)
...of G.S. . 1-277(a) does not apply to an order granting a partial new trial on the issue of damages. Insurance Co. v. Dickens, 41 N.C. App. 184, 187, 254 S.E.2d 197, 198 (1979). Thus, the trial court's order here is interlocutory and of a type not ordinarily subject to immediate appellate re......
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Jones v. Durham Anesthesia Associates, P.A.
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