Appeal and Error--appealability--order setting aside dismissal
An appeal was dismissed as interlocutory where defendant obtained a dismissal as a
result of plaintiffs' failure to respond to interrogatories, plaintiffs' motion for reconsideration
was granted, the orders of dismissal were rescinded, and defendant appealed. The avoidance of
trial is not a substantial right; defendant's rights may be adequately protected by timely exception
and subsequent assignment of error upon the entry of final judgment in the trial court.
Cranfill, Sumner & Hartzog, L.L.P., by Samuel H. Poole, Jr.
and S. Mujeeb Shah-Khan, for plaintiff-appellees.
Brinkley Walser, PLLC, by Charles H. McGirt, for defendant-
appellant.
JOHN, Judge.
Three Springs, Inc., d/b/a Wholesale Alley, defendant in each
of these two related cases, appeals the trial court's 8 February
2000 order rescinding its earlier 16 November 1999 order dismissing
the respective complaints of plaintiffs Rong Teat Yang d/b/a Golden
State Silk Flowers and James Hsaing d/b/a Shiny, Inc. We dismiss
defendant's appeals as interlocutory.
The procedural history of the instant appeals may be
summarized as follows: On 20 September 1999, the trial court
entered an order directing plaintiffs to respond to
interrogatories submitted by defendant. Due to plaintiffs' non-compliance with the court's order, defendant moved for sanctions
pursuant to N.C.G.S. § 1A-1, Rule 37(b)(2) (1999). By orders
entered 16 November 1999, the trial court allowed defendant's
motions and, upon considering “the entire range of possible
sanctions,” determined in its discretion that dismissal of
plaintiffs' complaints constituted “the appropriate sanction” in
each case.
Plaintiffs filed a consolidated motion for reconsideration on
30 November 1999 and a verified motion for relief from judgment on
14 December 1999. On the latter date, plaintiffs also noticed
appeal of the 16 November 1999 orders of dismissal. After
considering the verified motions and affidavits submitted by
plaintiffs and the arguments of counsel, the trial court entered
orders (the Orders) on 8 February 2000 determining that the 16
November 1999 rulings should be “reconsidered and modified” and
thereupon “rescind[ing]” those orders which had dismissed
plaintiffs' actions. Defendant timely noticed appeal. On or about
2 March 2000, plaintiffs withdrew their 14 December 1999 appeals of
the 16 November 1999 orders.
Although the interlocutory nature of the instant appeals has
not been raised by the parties, this Court recently reiterated that
“[i]f there is no right of appeal, it is the duty of an appellate
court to dismiss the appeal on its own motion.” Stafford v.
Stafford, 133 N.C. App. 163, 164, 515 S.E.2d 43, 44 (citation
omitted), aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999). We
reemphasized that this rule “prevent[s] fragmentary, premature and
unnecessary appeals by permitting the trial
court to bring the case to final judgment
before it is presented to the appellate
courts.”
Id. (quoting Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d
217, 218 (1985)).
An order that “'does not finally dispose of the case and
requires further action by the trial court,'” is interlocutory.
Horne v. Nobility Homes, Inc., 88 N.C. App. 476, 477, 363 S.E.2d
642, 643 (1988) (quoting Bailey v. Gooding, 301 N.C. 205, 209, 270
S.E.2d 431, 434 (1980)).
No appeal lies from an interlocutory
order unless it affects a substantial right
and will result in injury if not reviewed
before final judgment.
Id. (citations omitted). Further, if an appellant's rights may
be fully and adequately protected by an
exception to the order that could then be
assigned as error on appeal after final
judgment,
Bailey, 301 N.C. at 210, 270 S.E.2d at 434, there is no right to
immediate appellate review, see id. Finally, it is well settled,
in the instant context, that “[a]voidance of a trial, . . . is not
a 'substantial right.'” Id. (citations omitted); see also
Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 336, 299
S.E.2d 777, 780 (1983) (avoidance of trial or administrative
hearing not a substantial right entitling a party to immediate
appellate review).
Although it does not appear that our courts have previously
addressed the appealability of an order setting aside or rescindingan order of dismissal issued pursuant to G.S. § 1A-l, Rule
37(b)(2), the foregoing rules and analogous cases prompt the
conclusion that the Orders are interlocutory and not immediately
appealable. In GMC Trucks v. Smith, for example, our Supreme Court
equated an order setting aside a judgment of nonsuit (or dismissal)
to denial of a motion for nonsuit, and concluded neither was
immediately appealable. GMC Trucks v. Smith, 249 N.C. 764, 766,
107 S.E.2d 746, 748-49 (1959); see also Country Club of Johnston
County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159,
164, 519 S.E.2d 540, 544 (1999) (“order denying a motion to dismiss
'do[es] not determine even one claim, but simply require[s]
subsequent trial of the fact issues underlying that claim, [and is]
generally not appealable'” (alterations in original) (citation
omitted.)), disc. review denied, 351 N.C. 352, ___ S.E.2d ___
(2000). Significantly, in so ruling, the Court pointed out that
upon the trial court's refusal to dismiss an action,
[t]he movant may note an exception, allow the
case to proceed, and then, if dissatisfied
with the final result, the matter may be
considered on the appeal from the final
judgment.
GMC Trucks, 249 N.C. at 766, 107 S.E.2d at 749.
In the case sub judice, the Orders “rescinded” the 16 November
1999 order of dismissal, effectively returning plaintiffs'
previously dismissed actions to the court docket for subsequent
trial. In GMC Trucks and Country Club, the actions at issue
similarly remained for “'further action by the trial court.'”
Horne, 88 N.C. App. at 477, 363 S.E.2d at 643 (citation omitted);see GMC Trucks, 249 N.C. at 767, 107 S.E.2d at 749; Count
ry Club,
135 N.C. App. at 164, 519 S.E.2d at 544.
In short, the Orders are interlocutory and defendant is not
entitled to immediate appellate review as its rights may be
adequately protected by timely exception and subsequent assignment
of error thereto upon the entry of final judgment in the trial
court. Accordingly, defendant's appeal in each case is dismissed
as interlocutory.
Appeals dismissed.
Judges GREENE and WALKER concur.
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