Appeal and Error--appealability--interlocutory order--denial of motion to dismiss
Defendant's appeal from the trial court's order denying his motion to dismiss an action
filed against him by plaintiffs is dismissed as an appeal from an interlocutory order, because: (1)
an order denying a motion to dismiss under N.C.G.S. § 1A-1, Rule 41(a)(1) is interlocutory; and
(2) a denial of a motion to dismiss made on the ground that the action is barred under the Rule
41(a)(1) two-dismissal rule does not affect a substantial right.
Perry W. Martin for plaintiffs-appellees.
Faison & Gillespie, by Keith D. Burns, for defendant-
appellant.
ELMORE, Judge.
Defendant Jeffrey Max Stone appeals from the trial court's
order denying his motion to dismiss an action filed against him by
Dallas R. Allen, Jr. and wife, Gloria Allen (collectively,
plaintiffs). For the reasons stated herein, defendant's appeal is
dismissed as interlocutory.
On or about 20 January 1999, plaintiff Dallas R. Allen, Jr.
filed an action against defendant, civil action number 99 CVD 23,
(the district court action) in Northampton County District Court.
In the district court action, Mr. Allen asserted claims for fraud,
alleging that he advanced money to defendant on various occasions
in 1993 based on defendant's “fraudulent statements,representations, and inducements” regarding defendant's ability to
profitably invest Mr. Allen's money. Mr. Allen mistakenly filed
the action in district court despite seeking actual damages of
$183,511.82 and punitive damages of at least $300,000.00 in his
complaint. On 10 August 1999, Mr. Allen voluntarily dismissed the
district court action without prejudice, pursuant to N.C. Gen.
Stat. § 1A-1, Rule 41(a) (2001).
On or about 13 August 1999, Mr. Allen filed a second action
against defendant, this time in Northampton County Superior Court,
civil action number 99 CVS 359 (the superior court action). The
complaint filed in the superior court action also alleged fraud and
was identical to the district court action's complaint in all
material respects save one: the superior court action's complaint
contained an additional paragraph alleging “the sums of money
[defendant allegedly defrauded from Mr. Allen] are attested to and
executed by the Defendant under general warranty notes with clear
reference to the use of the word 'Under Seal' (attached hereto as
Exhibit A of this Complaint).” Attached to the superior court
action's complaint were two documents, each entitled “Promissory
Note” and each executed by Mr. Allen and defendant. The first
promissory note, in the principal amount of $37,500.00, was dated
1 January 1993; the second, in the principal amount of $49,000.00,
was dated 16 April 1993.
On 4 December 2001, plaintiff filed a notice of voluntary
dismissal of the superior court action, which stated as follows:
Pursuant to the provisions of Rule 41(a) of the
North Carolina Rules of Civil Procedure, the Plaintiff,Dallas R. Allen, Jr. hereby voluntarily dismisses his
complaint without prejudice. This Notice of Dismissal is
taken with the specific understanding and stipulation of
all parties and attorneys that the prior dismissal in
District Court by the Plaintiff due to a clerical error
does not cause the “two dismissal rule” to apply in
regard to this case, and the Plaintiff specifically
reserves the right to file this action in Superior Court
within the time allowed by law.
. . . .
Defendant denies entering into any understanding or stipulation
that the Rule 41 “two dismissal rule” would not apply in this case.
On 12 February 2002, Mr. Allen, this time joined as a party
plaintiff by his wife, commenced the present action against
defendant by filing a complaint in Northampton County Superior
Court, civil action number 02 CVS 53. Unlike the complaints in the
district court and superior court actions, the complaint in the
present action contained no allegations of fraud but instead
expressly asserted a claim for “Collection of Promissory Notes” and
specifically alleged the execution and delivery by defendant to
plaintiffs of two promissory notes, dated 1 January 1993 and 16
April 1993 and in the principal amounts of $37,500.00 and
$49,000.00, respectively. Plaintiffs, alleging that “[d]efendant
has defaulted under the terms of the notes, and the notes have
become due and now past due[,]” seek recovery in the present action
of each note's principal amount plus interest.
On 17 April 2002, defendant filed a motion to dismiss
plaintiffs' present action, asserting the claims therein have been
dismissed twice previously and are therefore barred by Rule
41(a)(1). Defendant appeals from the trial court's order denying
his motion to dismiss. An order is interlocutory if it is made during the pendency of
an action and does not dispose of the case, but rather requires the
trial court to take further action in order to finally determine
the entire controversy. Duquesne Energy, Inc. v. Shiloh Indus.
Contr'rs., Inc., 149 N.C. App. 227, 229, 560 S.E.2d 388, 389
(2002). While interlocutory orders are generally not immediately
appealable, a party may appeal from an interlocutory order which
affects a substantial right. Hart v. F.N. Thompson Constr. Co.,
132 N.C. App. 229, 230, 511 S.E.2d 27, 28 (1999); see also N.C.
Gen. Stat. § 1-277(a) (2001); N.C. Gen. Stat. § 7A-27 (2001).
Because defendant in the present case acknowledges that the
order denying his motion to dismiss pursuant to Rule 41(a)(1) is
interlocutory, we must determine whether the order affects a
substantial right. As the appellant, defendant has the burden of
showing this Court that the order deprives him of a substantial
right which would be jeopardized absent our review prior to a final
determination on the merits. Jeffreys v. Raleigh Oaks Joint
Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). If
defendant fails to carry this burden, the appeal is subject to
dismissal as interlocutory. Auction Co. v. Myers, 40 N.C. App.
570, 574, 253 S.E.2d 362, 365 (1979).
Our appellate courts have not previously addressed the issue
of whether denial of a motion to dismiss made on the grounds that
the action is barred under Rule 41(a)(1) affects a substantial
right. However, our appellate courts have considered this question
regarding denials of motions to dismiss made on other grounds, and
these decisions guide our analysis in the present case. Forexample, this Court has held that an order denying a motion to
dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b) is
ordinarily interlocutory and does not affect a substantial right,
and consequently does not give rise to a right of immediate appeal,
except in cases where “the jurisdictional challenge is substantive
rather than merely procedural.” Hart, 132 N.C. App. at 230-31, 511
S.E.2d at 28. In so holding, we have noted that the denial of a
motion to dismiss pursuant to Rule 12(b)(6) merely continues the
action in the trial court for further litigation. 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), disc. review denied, 351 N.C.
352, 542 S.E.2d 207-08 (2000). Moreover, this Court has held that
a “claim that the action should be dismissed pursuant to Rule 41(b)
for failure to prosecute must be dismissed as interlocutory.”
Berkman v. Berkman, 106 N.C. App. 701, 703, 417 S.E.2d 831, 833
(1992).
In the present case, defendant correctly notes that in cases
in which a party asserts sovereign, governmental, or qualified
immunity, denial of a motion to dismiss affects a substantial right
and is immediately appealable. Derwort v. Polk County, 129 N.C.
App. 789, 790-91, 501 S.E.2d 379, 380 (1998). In his brief,
defendant argues the Rule 41(a)(1) two-dismissal rule creates a
“right to be free from the burdens of litigation” giving rise to a
“conditional immunity from suit,” such that denial of a motion to
dismiss grounded on Rule 41(a)(1) likewise affects a substantial
right and is immediately appealable. We decline to adoptdefendant's interpretation of Rule 41(a)(1) as creating a
“conditional immunity from suit.”
After a careful review of the record and existing legal
authority, we discern no substantial right that would be affected
absent immediate appellate review. This Court has previously
stated that avoidance of a trial, no matter how tedious or
unnecessary, is not a substantial right entitling an appellant to
immediate review. Blackwelder v. Dept. of Human Resources, 60 N.C.
App. 331, 335, 299 S.E.2d 777, 780-81 (1983). In the present case,
the order denying defendant's motion to dismiss merely continues
this matter for further litigation in the trial court. Because
defendant has not met his burden of showing this Court that the
order deprives him of a substantial right which would be
jeopardized absent our review prior to a final determination on the
merits, defendant's appeal is dismissed as interlocutory.
Dismissed.
Judges TIMMONS-GOODSON and HUDSON concur.
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