GARY F. YORDY and KIMBERLY YORDY,
Plaintiffs
v
.
NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY,
Defendant
Thomas E. Dudley, III for plaintiff-appellees.
Harold C. Spears and C. Grainger Pierce, Jr., for defendant-
appellant.
HUNTER, Judge.
North Carolina Farm Bureau Mutual Insurance Company
(defendant) purports to appeal an order (1) granting partial
summary judgment in favor of Gary F. Yordy and Kimberly Yordy
(plaintiffs) on a defense raised by defendant in its response to
the complaint, and (2) denying defendant's motion for summary
judgment. Neither party has argued the threshold question of
whether this appeal is interlocutory. However, [i]t is well
established in this jurisdiction that if an appealing party has no
right of appeal, an appellate court on its own motion should
dismiss the appeal even though the question of appealability has
not been raised by the parties themselves. Bailey v. Gooding, 301
N.C. 205, 208, 270 S.E.2d 431, 433 (1980). For the reasons set
forth below, we dismiss this appeal as interlocutory. A grant of partial summary judgment, because it does not
completely dispose of the case, is an interlocutory order from
which there is ordinarily no right of appeal. Liggett Group v.
Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However,
an interlocutory order may nonetheless be appealed pursuant to Rule
54(b) of the North Carolina Rules of Civil Procedure if: (1) the
action involves multiple claims or multiple parties, (2) the order
is a final judgment as to one or more but fewer than all of the
claims or parties, and (3) the trial court certifies that there
is no just reason for delay. N.C. Gen. Stat. § 1A-1, Rule 54(b)
(1999).
In the present action, plaintiffs seek a declaratory judgment
as to whether they are entitled to recover from defendant for
plaintiff Gary Yordy's injuries resulting from a car accident. The
trial court's order merely disposes of one of the various defenses
raised by defendant in its answer to the complaint (namely, that
plaintiffs are barred from recovering against defendant by a
covenant not to execute). A defense raised by a defendant in
answer to a plaintiff's complaint is not a claim for purposes of
Rule 54(b). See Schuch v. Hoke, 82 N.C. App. 445, 346 S.E.2d 313
(1986) (holding that trial court's order, granting plaintiff's
motion for partial summary judgment on defenses of contributory
negligence and assumption of risk, not final judgment as to any
claim or party under Rule 54(b)). Thus, the trial court's order,
disposing of this defense as a matter of law, is not a final
judgment as to one or more but fewer than all of the claims orparties. N.C. Gen. Stat. § 1A-1, Rule 54(b). We note that,
although the trial court purported to certify the case for
immediate appeal under Rule 54(b), this act alone is insufficient
where the other requirements of Rule 54(b) are not satisfied. See,
e.g., CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134
N.C. App. 169, 171, 517 S.E.2d 151, 153-54 (1999). For the reasons
stated herein, we dismiss this appeal as interlocutory.
Dismissed.
Judges GREENE and TYSON concur.
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