DUQUESNE ENERGY, INC.,
Plaintiff,
v
.
SHILOH INDUSTRIAL CONTRACTORS, INC. and PROCESS PLANT
CONSULTANTS, INC.,
Defendants.
Hux, Livermon & Armstrong, L.L.P., by H. Lawrence Armstrong,
Jr., and James S. Livermon, Jr., for plaintiff-appellant.
Pepper Hamilton L.L.P., by George M. Medved and Kim M.
Watterson, for plaintiff-appellant.
Battle, Winslow, Scott & Wiley, P.A., by Marshall A. Gallop,
Jr., for defendant-appellee Shiloh Industrial Contractors,
Inc.
Poyner & Spruill, L.L.P., by J. Nicholas Ellis and Timothy W.
Wilson, for defendant-appellee Process Plant Consultants, Inc.
SMITH, Judge.
Plaintiff appeals from the judgment entered 18 October 2000,
where the trial court granted partial summary judgment in favor of
defendant Shiloh Industrial Contractors, Inc. (Shiloh), and
defendant Process Plant Consultants, Inc. (PPC) on all claims of
plaintiff, as well as summary judgment in favor of both defendants
regarding their respective counterclaims for breach of contract
against plaintiff.
The pleadings before the Court allege, in substance, that
plaintiff entered into a contract with Shiloh and PPC to design andbuild a facility to manufacture an alternative fuel product. A
disagreement arose over when the contract required completion of
the facility, and plaintiff filed suit for, among other things,
breach of contract. Defendants, respectively, filed answers and
counterclaims against plaintiff. Plaintiff thereafter filed a
motion for partial summary judgment; PPC filed a motion for summary
judgment and Shiloh filed a motion for partial summary judgment.
The trial court granted partial summary judgment in favor of
defendants on all claims of plaintiff and on defendants' respective
claims for breach of contract. Damages for plaintiff's breach were
to be determined in a subsequent trial. In addition, Shiloh's
claims against plaintiff for intentional fraud and unfair and
deceptive practice, and PPC's claims for injury to business
reputation and unfair and deceptive practice, remained to be
adjudicated. The judgment was not certified for immediate review
by the trial court pursuant to G.S. § 1A-1, Rule 54(b), even though
plaintiff made a specific request to certify the judgment for
appeal. Nevertheless, plaintiff filed notice of appeal of the
trial court's judgment to this Court. Defendants thereafter filed
motions to dismiss plaintiff's appeal as interlocutory.
An order 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) (citation omitted). Although
interlocutory orders are generally not immediately appealable, aparty may appeal from an interlocutory order which affects a
substantial right. Hart v. F.N. Thompson Constr. Co., 132 N.C.
App. 229, 511 S.E.2d 27 (1999) (citing N.C. Gen. Stat. § 1-277(a);
N.C. Gen. Stat. § 7A-27). A substantial right is one which will
clearly be lost or irremediably adversely affected if the order 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).
This Court must determine whether denial of immediate review
exposes a party to multiple trials with the possibility of
inconsistent verdicts. Creek Pointe Homeowner's Ass'n., Inc. v.
Happ, ___ N.C. App. ___, ___, 552 S.E.2d 220, 223 (2001) (citing
Murphy v. Coastal Physician Grp., Inc., 139 N.C. App. 290, 533
S.E.2d 817 (2000); Moose v. Nissan of Statesville, 115 N.C. App.
423, 444 S.E.2d 694 (1994)).
In plaintiff's brief in opposition to Shiloh's motion to
dismiss plaintiff's appeal as interlocutory, plaintiff admitted the
appeal was interlocutory but nevertheless argued that it was
pursuing the present appeal under the substantial right doctrine.
However, no substantial right is involved in the present case which
would require this Court to review plaintiff's appeal prior to a
full determination of the entire controversy among the parties.
The trial court's grant of summary judgment dismissing all of
plaintiff's claims and entering judgment in favor of both
defendants as to their respective breach of contract claims
resolves, for now, the question of which party breached the
contract. Plaintiff, for now, will be held accountable in a trialdetermining damages for its breach; plaintiff will also be required
to stand trial for the separate claims brought by defendants. This
Court has repeatedly held that avoiding trial on the merits is not
a substantial right. Leake v. Sunbelt Ltd. of Raleigh, 93 N.C.
App. 199, 377 S.E.2d 285, disc. review denied, 324 N.C. 578, 381
S.E.2d 774 (1989) (citing Horne v. Nobility Homes, Inc., 88 N.C.
App. 476, 363 S.E.2d 642 (1988)). Plaintiff has not identified a
substantial right which would be irremediably adversely affected by
this Court's refusal to hear this interlocutory appeal.
Blackwelder, 60 N.C. App. 331, 299 S.E.2d 777.
Plaintiff's appeal in the present case is interlocutory, does
not affect a substantial right, and is therefore dismissed.
Dismissed.
Judges TIMMONS-GOODSON and BRYANT concur.
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