1. Appeal and Error_appealability_denial of summary
judgment_trial court certification_not a final judgment_Rule
54 not applicable
A purported appeal from the denial of a third-party
defendant's summary judgment motion did not fall within the scope
of N.C.G.S. § 1A-1, Rule 54(b) even though it was certified by
the trial court where the judgment was not final as to either a
claim or a party. Rule 54(b) provides that a judgment is
immediately appealable when the trial court certifies that there
is no just reason for delay in an action with multiple parties or
multiple claims.
2. Appeal and Error_appealability_denial of summary judgment--
statute of repose defense_substantial right not affected
A third-party's appeal from the trial court's denial of its
motion for summary judgment based upon the statute of repose was
interlocutory and did not affect a substantial right, and the
appeal was dismissed. Defendant can raise the statute of repose
on appeal from a final judgment and, unlike the defense of
immunity, the only loss suffered would be the time and expense of
trial. Moreover, it has been held that the statute of
limitations does not affect a substantial right and is therefore
not appealable.
No brief filed for plaintiff-appellee.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III and
Robert J. McAfee, for defendant-appellee.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Kirk G. Warner and Jane Langdell, for third-party
defendant-appellant.
HUNTER, Judge.
Third-party defendant, Ford Motor Company (“Ford”), appeals
from an order denying its motion for summary judgment. We dismiss
Ford's appeal as interlocutory.
Ruth Marie Lee (“plaintiff”) and her husband, Charles W. Lee,
bought a new Ford Ranger on 12 April 1991. Five and a half years
later, on 28 October 1996, plaintiff was injured when her husband
drove the Ford Ranger off the road, hitting a tree while plaintiff
was a passenger in the truck. In December of 1996, plaintiff's
husband died of a heart attack, unrelated to the October accident.
On 26 October 1999, plaintiff commenced this suit against her
husband's estate seeking damages for the injuries sustained in the
accident in October of 1996. On 8 March 2000, the estate filed a
third-party complaint against Ford alleging entitlement to
contribution and/or indemnification based on negligence and breach
of warranty. Ford subsequently filed a motion for summary judgment
relying on the statute of repose. Ford claimed that because the
original action and the third-party complaint were filed more than
six years after the initial purchase of the truck, the suit was
barred by the statute of repose. See N.C. Gen. Stat. § 1-50(6)
(1999). The trial court denied the motion for summary judgment,
and certified the action for appeal under Rule 54(b). Ford
appeals.
[1]An appeal is interlocutory “if it is made during the
pendency of an action and does not dispose of the case but requires
further action by the trial court in order to finally determine the
entire controversy.” N.C. Dept. of Transportation v. Page, 119
N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). North Carolina lawallows an immediate appeal from an interlocutory order only in
limited circumstances. See N.C. Gen. Stat. §§ 1-277, 7A-27(d)
(1999); N.C.R. Civ. P. 54(b). We first note that Rule 54(b) does
not provide a basis for review here. “Rule 54(b) provides that in
an action with multiple parties or multiple claims, if the trial
court enters a final judgment as to a party or a claim and
certifies there is no just reason for delay, the judgment is
immediately appealable.” DKH Corp. v. Rankin-Patterson Oil
Company, 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998). Here,
although the judgment was certified for appeal by the trial court,
it was not final as to either a claim or a party. Thus, this
purported appeal does not fall within the scope of Rule 54(b).
[2]Ford argues, however, that the denial of its motion for
summary judgment based upon the statute of repose affects a
substantial right and is, therefore, immediately appealable. It is
settled law in North Carolina that the denial of a motion for
summary judgment is interlocutory, and not immediately appealable.
Anderson v. Town of Andrews, 133 N.C. App. 185, 186, 515 S.E.2d 55,
56 (1999). “The reason for this rule is to prevent 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.” Fraser v. Di Santi, 75 N.C. App. 654, 655, 331
S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856
(1985). However, a party may appeal an interlocutory order where
the order affects a substantial right. N.C. Gen. Stat. §§ 1-
277(a), 7A-27(d)(1) (1999). A right is considered substantial if
it “will clearly be lost or irremediably adversely affected if theorder is not reviewable before final judgment.” Blackwelder
v.
Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777,
780 (1983).
Ford argues that the statute of repose gives a defendant a
“vested right” not to be sued and is therefore similar to the
defense of immunity, which is considered a substantial right.
Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 727, 518
S.E.2d 786, 789 (1999). Since North Carolina law allows for an
interlocutory appeal where the denial of a motion for summary
judgment is based on immunity, see id., Ford argues that an
interlocutory appeal should be allowed where the denial of a motion
for summary judgment is based upon the statute of repose. We
disagree.
“'“[T]he essence of absolute immunity is its possessor's
entitlement not to have to answer for his conduct in a civil
damages action.”'” Herndon v. Barrett, 101 N.C. App. 636, 639, 400
S.E.2d 767, 769 (1991) (citations omitted). We do not believe the
statute of repose creates a similar entitlement. Unlike a claim
for immunity, Ford's right to raise the statute of repose defense
will not be lost if we do not review the case prior to a final
judgment since Ford may raise the issue on appeal from a final
judgment. The only loss Ford will suffer will be the time and
expense of trial. We note, however, that avoiding the time and
expense of trial is not a substantial right justifying immediate
appeal. Anderson, 134 N.C. App. at 727, 518 S.E.2d at 789.
In addition, we note that our Supreme Court has previously
determined that a motion to dismiss “based on a statute oflimitation[s] does not [a]ffect a substantial right and is
therefore not appealable.” Thompson v. Norfolk S. Ry. Co., 140
N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (citing Johnson v.
Insurance Co., 215 N.C. 120, 1 S.E.2d 381 (1939)). For this
purpose, we see no reason to treat a motion for summary judgment
based on the statute of repose differently than a motion to dismiss
based on the statute of limitations.
For these reasons, we hold that the third-party defendant's
appeal from the trial court's denial of its motion for summary
judgment based on the statute of repose defense is interlocutory
and does not affect a substantial right, and therefore must be
dismissed.
Appeal dismissed.
Chief Judge EAGLES and Judge HUDSON concur.
*** Converted from WordPerfect ***