A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in
the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
NO. COA02-45
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2002
SEBASTIAN DAVIS,
Plaintiff,
v
.
Guilford County
No. 00 CVS 9625
CLARENCE E. LLOYD M.D.,
CHESTER S. CLACK, and
THREEFOLD REALTY, INC.,
Defendants.
Appeal by plaintiff from judgments entered 8 November 2001 by
Judge Melzer A. Morgan in Guilford County Superior Court. Heard in
the Court of Appeals 19 September 2002.
James B. Weeks, for plaintiff-appellant.
Burton & Sue, L.L.P., by Gary K. Sue and Stephanie W.
Anderson, for defendant-appellees Clarence E. Lloyd, M.D. and
Chester S. Clack.
Stern & Klepfer, L.L.P, by James W. Miles, Jr., for
defendant-appellee Threefold Realty, Inc.
HUDSON, Judge.
Appellant Sebastian Davis (Davis) filed suit against the
appellees, alleging that he was injured after the ceiling of a
house owned and maintained by the appellees collapsed and fell on
him. Appellees Clarence E. Lloyd, M.D. (Lloyd) and Chester S.
Clack (Clack) moved for summary judgment, which the trial court
granted. For the reasons set forth in the following opinion, we
dismiss this appeal as interlocutory.
I.
Lloyd and Clack owned a house in Greensboro, North Carolina,and employed appellee Threefold Realty, Inc. (Threefold) to lease
and maintain the residence. On August 20, 1997, Davis entered the
home to visit the current tenants when a portion of the ceiling
collapsed and fell, injuring him.
Davis filed suit in August 2000 against Lloyd and Clack, the
owners of the residence, and against Threefold as Lloyd and Clack's
agent. Davis alleged, inter alia, that the appellants knew or
should have known that the ceiling needed repair, that the
appellants failed to make the necessary repairs, and that the
appellants failed to exercise reasonable care and diligence in
maintaining the residence. Lloyd and Clack answered the complaint,
although Threefold did not, as its president apparently believed
that Lloyd and Clack's lawyer also represented it. Davis moved for
an entry of default against Threefold, which was granted in
December 2000.
Lloyd and Clack filed a motion for summary judgment in
September 2001 and filed an amended motion in October 2001. Davis
also filed his own summary judgment motion. On 8 November 2001,
the trial court granted summary judgment in favor of Lloyd and
Clack. Also on that day, the trial court set aside the entry of
default against Threefold. Davis now appeals (1) the entry of
summary judgment in favor of Lloyd and Clack; (2) the denial of
Davis's motion for summary judgment; and (3) the setting aside of
the entry of default against Threefold.
II.
We decline to reach the merits of any of these issues. Agrant of summary judgment for fewer than all defendants is an
interlocutory order from which generally there is no right to
appeal. N.C. R. Civ. P. 54(b) (2001); Liggett Group, Inc. v.
Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). A party
is, however, permitted to appeal an interlocutory order in two
circumstances: (1) where the order is final as to some claims or
parties, and the trial court certifies pursuant to Rule 54(b) of
the North Carolina Rules of Civil Procedure that there is no just
reason to delay the appeal, Alford v. Catalytica Pharms., Inc., 150
N.C.App. 489, 491, 564 S.E.2d 267, 268 (2002); or (2) where the
order deprives the appellant of a substantial right that would be
lost unless immediately reviewed, Turner v. Norfolk S. Corp., 137
N.C.App. 138, 141, 526 S.E.2d 666, 669 (2000).
In this case, because the trial court made no certification,
the first option is unavailable. Regarding the second, Davis
argues in his brief that the liability of the principals--Lloyd and
Clack--must be resolved before the liability of the agent--
Threefold--because agents typically are not deemed liable unless
and until their principals are found to be liable. We disagree.
It is true that the Supreme Court has held that a grant of
summary judgment as to fewer than all the defendants affects a
substantial right when there is the possibility of inconsistent
verdicts. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405,
408 (1982). As the Court explained, it is the plaintiff's right
to have one jury decide whether the conduct of one, some, all or
none of the defendants caused his injuries. Id., 293 S.E.2d at409. Our court, however, has examined the issue in the more
specific context of derivative liability and held that there is no
possibility of inconsistent verdicts [and thus no substantial
right affected] when a principal whose liability is derivative is
determined to be not liable by the trial court and the claims
against the alleged agent remain. Florek v. Borror Realty Co.,
129 N.C. App. 832, 834-85, 501 S.E.2d 107, 108 (1998); see also
Long v. Giles, 123 N.C. App. 150, 153, 472 S.E.2d 374, 375 (1996).
Here, any liability on the part of Lloyd and Clack, the owners
of the residence, hinges upon a finding that Threefold, the party
that leased and maintained the residence, is liable. See, e.g.,
Long, 123 N.C. App. at 153, 472 S.E.2d at 375-76 (noting that the
liability of the principal is only derivative of the wrongful act
of the agent). Because one party's liability depends upon the
other's, there can be no possibility of inconsistent verdicts.
This appeal is, therefore, dismissed in accordance with our
procedural rules that are designed to promote judicial economy by
avoiding fragmentary, premature and unnecessary appeals and permit
the trial court to fully and finally adjudicate all the claims
among the parties before the case is presented to the appellate
court. Florek, 129 N.C. App. at 836, 501 S.E.2d at 109 (citations
and quotation marks omitted).
Dismissed.
Judge TIMMONS-GOODSON and CAMPBELL concur.
Report per Rule 30(e).
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