Appeal by defendant from order entered 19 February 2002 by
Judge D. Jack Hooks, Jr., in Brunswick County Superior Court.
Heard in the Court of Appeals 26 March 2003.
FAIRLEY, JESS, ISENBERG & GREEN, by William F. Fairley, for
plaintiff appellees.
Fred D. Webb, Jr., for defendant appellant.
TIMMONS-GOODSON, Judge.
Robert D. Moretz (“defendant”) appeals from a judgment of the
trial court granting partial summary judgment in favor of T. Hoyle
Dosher, Sr., Hermine Dosher Hall, Albert Dosher, and Richard Dosher
(referred to collectively as “plaintiffs”). Because we rule that
this appeal is interlocutory and does not affect a substantial
right, we dismiss the appeal.
This appeal arises out of a real property dispute between
plaintiffs and defendant. The relevant procedural history of this
case is as follows: On 31 July 2000, plaintiffs filed a complaintagainst defendant, to quiet title and alleging trespass and slander
to title of property located in Southport, North Carolina.
Plaintiffs' action sought to recover damages in an amount in excess
of $10,000.00. In response, defendant filed an answer denying
plaintiffs' claims and filed a counterclaim. Defendant's
counterclaim sought a declaration that he was the owner of the
contested property and asserted that plaintiffs' deed created a
cloud on the title. Thus, defendant claimed that he was entitled
to damages from plaintiffs in excess of $10,000.00.
On 15 October 2001, plaintiffs filed a motion for summary
judgment. By order issued 13 February 2002, the trial court
granted partial summary judgment in favor of plaintiffs by
declaring plaintiffs the owners of the property in dispute and
declaring defendant's deeds null and void. Further, the trial
court dismissed defendant's counterclaim with prejudice.
Plaintiffs' causes of action set forth in the complaint for damages
were not decided by the trial court. From this order of partial
summary judgment, defendant appeals.
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The sole issue raised by defendant on appeal is whether the
trial court erred in granting partial summary judgment to
plaintiffs when there were genuine issues of material fact as to
whether the property claimed by plaintiffs is the same property
claimed by defendant. Before we address this issue, we must decide
whether defendant's appeal is interlocutory and subject to
dismissal. 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). A final judgment disposes of
the case as to all the parties, leaving nothing to be judicially
determined between them in the trial court; however, an
interlocutory order “does not dispose of the case, but leaves it
for further action by the trial court in order to settle and
determine the entire controversy.”
Veazey v. Durham, 231 N.C. 357,
361-62, 57 S.E.2d 377, 381 (1950).
The grant of partial summary judgment did not resolve all the
claims in this case and an appeal from that order is therefore
interlocutory. It is well established that an interlocutory order
is not immediately appealable,
Hudson-Cole Dev. Corp. v. Beemer,
132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999); however, the
right to appeal such an order is available through two avenues.
Brown v. Brown, 77 N.C. App. 206, 207, 334 S.E.2d 506, 507 (1985),
disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986). First,
Rule 54(b) of our Rules of Civil Procedure allows a party to appeal
“if there has been a final judgment as to all of the claims and
parties, or if the specific action of the trial court from which
appeal is taken is final and the trial judge expressly determines
that there is no just reason for delaying the appeal.”
Id. at 207,
334 S.E.2d at 507-508. We note that, in the instant case, the
trial court made no such certification. Therefore, defendant islimited to the second avenue of appeal, where “the trial court's
decision deprives the appellant of a substantial right which would
be lost absent immediate review.”
N.C. Dept. of Transportation,
119 N.C. App. at 734, 460 S.E.2d at 334;
see Jeffreys v. Raleigh
Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994) (noting that the appellant has the burden of establishing
that a substantial right will be affected),
see also N.C. Gen.
Stat. §§ 1-277(a), 7A-27(d)(1) (2001) (a party may appeal an
interlocutory order where the order affects a substantial right).
The moving party must show that the affected right is a substantial
one, and that deprivation of that right, if not corrected before
appeal from final judgment, will potentially injure the moving
party.
See Goldston v. American Motors Corp., 326 N.C. 723, 726,
392 S.E.2d 735, 736 (1990). The substantial right most often
addressed by our courts is the right to avoid inconsistent verdicts
created by separate trials on the same issues.
Rudisail v.
Allison, 108 N.C. App. 684, 686, 424 S.E.2d 696, 698,
disc. review
denied, 333 N.C. 575, 429 S.E.2d 572 (1993). The determination of
whether a substantial right is affected should be strictly
construed and viewed on a case-by-case basis.
Bernick v. Jurden,
306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982);
see also Buchanan v.
Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509 (1982).
In the instant case, defendant's brief contains a brief
statement to suggest that a substantial right exists in order to
avoid an inconsistent verdict. Because this Court is not convinced
that there is a risk of such verdicts, defendant's appeal ispremature.
The only claims left to be determined concern the
entirely separate issues of trespass and slander to title.
Therefore, at trial the court will only hear evidence of whether
defendant engaged in tortious conduct requiring an award of
damages. Thus, there is no possibility of inconsistent verdicts.
Here, no substantial right would be lost without immediate review.
See CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C.
App. 169, 172, 517 S.E.2d 151, 154 (1999). Moreover, we note that
dismissing this interlocutory appeal does not prejudice defendant.
Because defendant has preserved his objection to the trial court's
order granting partial summary judgment in favor of plaintiffs,
defendant preserves the issue and if necessary, appeal from the
trial court's ultimate disposition of the entire controversy.
See
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 143, 526 S.E.2d 666,
671 (2000).
Accordingly, because neither a final judgment was entered, nor
any substantial right affected, we dismiss this appeal as
interlocutory.
Dismissed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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