Walden v. Morgan, COA05-1560

CourtCourt of Appeal of North Carolina (US)
Citation635 S.E.2d 616
Decision Date17 October 2006
Docket NumberNo. COA05-1560,COA05-1560
PartiesHAROLD WALDEN and wife, BARBARA WALDEN, Plaintiffs, v. JOHN P. MORGAN, TROY ALLEN TAYLOR, PACE OIL CO., INC., BIESECKER ROAD COMMERCIAL, LLC, and MOHEY M. BASYOONI, Defendants. PAULINE GRAY, Plaintiff, v. JOHN P. MORGAN, TROY ALLEN TAYLOR, PACE OIL CO., INC., BIESECKER ROAD COMMERCIAL, LLC, and MOHEY M. BASYOONI, Defendants.

Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker and Christopher A. Raines, for plaintiffs-appellants/cross appellees.

No brief filed for defendants-appellees John P. Morgan, Troy Allen Taylor, Pace Oil Co., Inc.

Adam R. Smart and H. Brent Helms, for defendant-appellee/cross appellant Biesecker Road Commercial, LLC.

Teague, Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for defendant-appellee Mohey M. Basyooni.

TYSON, Judge.

Harold and Barbara Walden and Pauline Gray (collectively, "plaintiffs") appeal from orders entered granting Biesecker Road Commercial, LLC's ("BRC") and Mohey M. Basyooni's ("Basyooni") motions for summary judgment. BRC cross-appeals from orders entered denying, in part, its motion to tax deposition expenses to plaintiffs as costs. We affirm in part, reverse in part and remand.

I. Background

In 1998, BRC acquired property located at 305 Biesecker Road in Lexington, North Carolina. The property contained a commercial building and an above-ground tank used to store gasoline. On 15 April, 2002 BRC leased the property to Basyooni. Basyooni operated a convenience store which marketed gasoline pumped from the tank located on the property.

When Basyooni leased the property, he also purchased the prior leasee's inventory. Basyooni also continued the prior leasee's consignment relationship with Pace Oil Co., Inc. ("Pace Oil"). Basyooni orally agreed to market gasoline owned and provided by Pace Oil to his customers. Pace Oil agreed to pay Basyooni one-cent for each gallon of gasoline sold. Pace Oil was solely responsible for servicing the gasoline pumps, the delivery apparatus, and supplying the gasoline.

On 31 May 2002, Roger Page, president of Pace Oil, decided to exchange winter gasoline stored in the tank with summer gasoline. John Morgan ("Morgan") and Troy Taylor ("Taylor"), employees of Pace Oil Co., traveled to the property and began transferring gasoline from and to the storage tank. The gasoline transfer was conducted solely by Morgan and Taylor with a pump owned by Pace Oil. Two hours after the transfer began, the gasoline ignited and a fire occurred. The exact cause of the fire is unknown. Taylor stated he saw gasoline spraying from the area near the pump when the fire began. Morgan also gave a similar statement. Roger Page stated the fire may have ignited from gasoline spraying from a small hole in the hose transferring the gasoline. After Taylor and Morgan unsuccessfully attempted to extinguish the fire, a significant explosion occurred.

Plaintiffs each own homes located adjacent to BRC's property. The fire and explosion damaged plaintiffs' lands, homes, and personal property. Plaintiffs alleged gasoline, oil, and other hazardous chemicals entered and contaminated their lands and groundwater as a result of the fire and explosion. Plaintiffs also alleged the fire and explosion burned trees, vegetation, and discolored and stained exterior siding on their buildings.

Plaintiffs filed suit against Morgan, Allen, Pace Oil, BRC, and Basyooni on 18 March 2004. Morgan, Allen, and Pace Oil are not parties to this appeal. Plaintiff's claims against these defendants remain pending before the trial court.

Plaintiffs asserted claims of negligence and nuisance against BRC and Basyooni. On 15 July 2005 both BRC and Basyooni moved for summary judgment on both of plaintiffs' claims. In support of both motions for summary judgment, BRC and Basyooni submitted affidavits from Graham Bunce ("Bunce"), a member of BRC, and Tony Beasley ("Beasley"), Chief Zoning Code Enforcement Officer. On 22 July 2005, plaintiffs objected to and moved to strike Beasley's affidavit and certain portions of Bunce's affidavit.

On 3 August 2005, BRC and Basyooni's motions for summary judgment were granted. BRC then moved to tax costs against plaintiffs. The court taxed one-half of the mediation fee as costs incurred by BRC pursuant to N.C. Gen. Stat. § 6-20. The trial court denied BRC's motion to tax BRC's deposition expenses to plaintiffs as costs.

Plaintiffs appeal from the trial court's consideration of Bunce's and Beasley's affidavits and the trial courts granting of BRC's and Basyooni's motions for summary judgment. BRC conditionally cross-appeals the trial court's denial, in part, of its motion to tax deposition expenses to plaintiffs as costs.

II. Interlocutory Appeal

We must initially decide whether this case is properly before us. The trial court granted summary judgment for less than all the defendants. Plaintiffs assert grounds for appellate review pursuant to N.C. Gen. Stat. § 1-277(a) and N.C. Gen. Stat. § 7A-27(d)(1).

In In re Estate of Redding v. Welborn, this Court stated:

An appeal from a trial court's order of summary judgment for less than all the defendants in a case is ordinarily interlocutory, and therefore untimely. However, an order is immediately appealable when it affects a substantial right. 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.

170 N.C. App. 324, 328-29, 612 S.E.2d 664, 667-68 (2005) (internal citations and quotations omitted). "Whether or not a substantial right will be prejudiced by delaying an interlocutory appeal must be decided on a case-by-case basis." Hoots v. Pryor, 106 N.C. App. 397, 401, 417 S.E.2d 269, 272, disc. rev. denied, 332 N.C. 345, 421 S.E.2d 148 (1992).

The trial court granted BRC's and Basyooni's motions for summary judgment and disposed of all of plaintiffs claims against both BRC and Basyooni. Plaintiffs alleged BRC and Basyooni are joint tortfeasors with Pace Oil and its agents Morgan and Allen. Many of the same factual issues would apply to plaintiffs' claims against BRC and Basyooni and the remaining defendants. Separate trials could result in inconsistent verdicts. Plaintiffs asserted a substantial right to immediate review. Their appeals are properly before this Court. In re Estate of Redding, 170 N.C. App. at 328-29, 612 S.E.2d at 668.

III. Issues

Plaintiffs assign error to the trial court's: (1) consideration of certain portions of Bunce's and Beasley's affidavits; 2) granting BRC's motion for summary judgment regarding plaintiffs' negligence and nuisance claims; and 3) granting Basyooni's motion for summary judgment regarding plaintiffs' negligence and nuisance claims.

BRC conditionally cross-appeals and assigns error to the trial court's partial denial of BRC's motion to tax its deposition expenses to plaintiffs as costs.

IV. Analysis
A. Plaintiffs' Assignments of Error
1. Affidavits

Plaintiffs argue the trial court's consideration of Beasley's affidavit and parts of Bunce's affidavit in granting summary judgment for BRC and Basyooni is error. BRC and Basyooni submitted these affidavits in support of their motions for summary judgment.

Plaintiffs objected and moved to strike the affidavits contending they failed to comply with Rule 56 and that the statements contained in the affidavits were legal conclusions and not statements based on personal knowledge. N.C. Gen. Stat. § 1A-1, Rule 56 (2005). The record does not disclose whether the trial court ruled on plaintiffs' objections and motions to strike the affidavits.

In order to preserve a question for appellate review, "the complaining party must obtain a ruling upon the party's request, objection or motion." N.C.R. App. P. 10(b)(1) (2006). Plaintiffs never obtained a ruling on their objection and motion to strike the affidavits. In the absence of any ruling by the trial court in the record on appeal, this issue is not properly before us and must be dismissed. "`The North Carolina Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Plaintiffs' assignment of error was not preserved and is dismissed. See Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 738, 594 S.E.2d 227, 229-30 (2004) ("This Court is unable to review the issue . . . since there is nothing before this Court indicating the trial court's ruling on the question.").

2. Standard of Review

Plaintiffs' remaining assignments of error challenge the trial court's grant of BRC's and Basyooni's motions for summary judgment.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact.
A defendant may show entitlement to summary judgment by (1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense. Summary judgment is not appropriate where matters of credibility and determining the weight of the evidence exist.
Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial. To hold otherwise . . . would be to allow plain
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