On 22 August 2003 plaintiff filed a motion for dismissal of
defendants' appeal, on the grounds that defendants have appealed
from an interlocutory order not subject to immediate review.
Interlocutory orders and judgments are those 'made during the
pendency of an action which do not dispose of the case, but instead
leave it for further action by the trial court to settle and
determine the entire controversy.' Generally, there is no right of
immediate appeal from interlocutory orders and judgments. Sharpe
, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quoting
Carriker v. Carriker
, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)).
Defendants herein appeal from an order deeming the earlier
dismissal of plaintiff's claims to be without prejudice, and
allowing plaintiff a year from the date of the order to refile.
This Court has previously held similar orders to be interlocutory.
In Johnson v. N.C. Dept. of Transportation
, 70 N.C. App. 784, 321
S.E.2d 20 (1984), a deputy commissioner of the Industrial
Commission dismissed the plaintiff's claim, which had been filed
under the Tort Claims Act. The plaintiff appealed to the Full
Commission, which amended [the Deputy Commissioner's] order to
provide that the claim be dismissed without prejudice so that theplaintiff could file a new action based on the same claim within
one year of the Commission's order. Id
. at 785, 321 S.E.2d at 20.
On appeal, defendant argued that the Commission's order, deeming
the earlier dismissal to be without prejudice, constituted a final
judgment because [t]he case was not remanded to the deputy
commissioner and any further proceedings must be brought with new
pleadings and a new docket number. Id.
On this basis, the
defendants sought immediate review. This Court held:
We believe that to hold that any claim brought
on the same facts as were alleged in this case
is a different case would be to exalt form
over substance. If the plaintiff brings
another action based on the same facts as
those on which this case is based it will be a
continuation of this case. That being so, the
order of the Industrial Commission is not a
final judgment disposing of the case.
Although the decision was made in the context of the Tort
Claims Act, we find the reasoning of Johnson
also applicable as to
workers' compensation cases. Notwithstanding that as a technical
matter plaintiff may have to file a new claim form, we conclude
that defendants appeal is from an interlocutory order that does not
resolve the issues between the parties.
Although ordinarily a party may not appeal an interlocutory
order, appeal is allowed where denial of immediate review would
jeopardize a substantial right of the appellant. N.C.G.S. § 7A-
27 (d)(1) (2003) (allowing appeal of right to this Court from any
interlocutory order or judgment that [a]ffects a substantial
right[.]). 'Essentially a two-part test has developed _ the
right itself must be substantial and the deprivation of that
substantial right must potentially work injury . . . if notcorrected before appeal from final judgment.' Travco Hotels v.
Piedmont Natural Gas Co
., 332 N.C. 288, 292, 420 S.E.2d 426, 428
(1992) (quoting Goldston v. American Motors Corp.
, 326 N.C. 723,
726, 392 S.E.2d 735, 736 (1990)).
Our Supreme Court has stated that the possibility of having
to retry an issue already litigated can be a substantial right.
Accordingly, 'the denial of a motion for summary judgment based on
the defense of res judicata
may affect a substantial right, making
the order immediately appealable.' Naddeo v. Allstate Ins. Co
139 N.C. App. 311, 317, 533 S.E.2d 501, 505 (2000) (citing Green v.
Duke Power Co.
, 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982), and
quoting Bockweg v. Anderson
, 333 N.C. 486, 491, 428 S.E.2d 157, 161
(1993)). The doctrine of res judicata
precludes relitigation of
final orders of the Full Commission and orders of a deputy
commissioner which have not been appealed to the Full Commission.
Bryant v. Weyerhaeuser Co.
, 130 N.C. App. 135, 138, 502 S.E.2d 58,
61 (1998) (citing Hogan v. Cone Mills Corp
., 315 N.C. 127, 135-36,
337 S.E.2d 477, 482 (1985), rev'd on other grounds,
326 N.C. 476,
390 S.E.2d 136 (1990)). Defendants herein argue that the
Commission's order violated principles of res judicata
, and is,
therefore, immediately appealable. We disagree.
Commissioner Glenn's order of dismissal did not specify
whether it was with or without prejudice. Accordingly, it is held
to be a dismissal with prejudice. Harvey v. Cedar Creek BP
N.C. App. 873, 875, 562 S.E.2d 80, 82 (2002) ([T]he involuntary
dismissal of Plaintiff's claim entered by the deputy commissioner
. . . which does not mention whether it was entered with or withoutprejudice, must be construed as having been entered with
As a dismissal with prejudice, it constitutes a final judgment
on the merits. See Hogan
, 315 N.C. at 136, 337 S.E.2d at 482
([An] order of dismissal granted at the instance of a party's
opponent . . . was a final dismissal of [plaintiff's] claim on the
merits.). In Hogan
, as in the instant case, the plaintiff failed
to appeal from a dismissal with prejudice. Several years later, he
filed a new claim, and was awarded benefits. On appeal, this Court
held that the dismissal of his first claim was res judicata
respect to the second claim. The North Carolina Supreme Court
agreed that as long as the dismissal stood, a second claim was
barred. However, the Court also held that the Industrial
Commission possessed the inherent power to set aside one of its
former judgments which authority is analogous to that conferred
upon the courts by N.C.R. Civ. P. 60(b)(6). Id
. at 137, 337
S.E.2d at 483. The Court explained that this authority:
to provide relief against the operation of a
former judgment . . . is a remedy fashioned by
courts to relieve hardships which from time to
time arise from a fast and hard adherence to
the usual rule that judgments should not be
disturbed once entered. The remedy has been
characterized by a flexibility which enables
it to be applied in new situations to avoid
the particular injustices inherent in them. .
. . [W]e believe the legislature impliedly
vested such power in the Commission[.]
. at 139-40, 337 S.E.2d at 484.
Significantly, the Hogan
Court held further that, if the
Industrial Commission chose to exercise its authority to set asidethe earlier dismissal, res judicata
would no longer bar plaintiff
from bringing a new claim:
The decision whether to set aside the judgment
rests, in the first instance, within the
judgment of the Commission. If the Commission
refuses to set aside the former judgment,
Hogan's claim will be barred by res judicata
If, on the other hand, the Commission does set
aside the former judgment, no final judgment
on the merits will exist to bar this action[.]
at 142, 337 S.E.2d at 477.
Thus, the Full Commission has the inherent power, 'analogous
to that conferred on courts by Rule 60(b)(6),' to set aside or
modify its own orders, including final orders of the deputy
, 130 N.C. App. at 138, 502 S.E.2d at 61
315 N.C. at 129, 337 S.E.2d at 478).
In the instant case, the Commission exercised its inherent
power to modify or set aside an order. The issue addressed by
Commissioner Glenn was whether to grant defendants' motion for
dismissal. The Full Commission did not
relitigate the issue of
the merits of defendants' motion for dismissal. Nor did the
Commission conclude as a matter of law that the order had been
entered without prejudice. Rather, the Commission modified
dismissal order by ordering that it be deemed to have been entered
without prejudice. The definition of the word deemed in the
legal context is considered or treated as if. Black's Law
Dictionary 415 (6th ed. 1990); Bryan A. Garner, A Dictionary of Modern
Legal Usage 254 (2d ed. 1995). Thus, the Commission modified the
dismissal by ordering that it be treated as if it had been
entered without prejudice. We conclude that the Commission's orderneither implicates defendants' right to avoid relitigation of a
final order, nor presents other issues of res judicata
We next consider whether the Commissioner's order is subject
to immediate appellate review. While 'the Rules of Civil
Procedure are not strictly applicable to proceedings under the
Workers' Compensation Act,' they may provide guidance in the
absence of an applicable rule under the Workers' Compensation Act.
, 149 N.C. App. at 875, 562 S.E.2d at 81 (quoting Hogan
at 137, 337 S.E.2d at 483). In this case, the Commission
exercised its inherent authority to grant relief from judgment,
which the North Carolina Supreme Court has held is analogous to
a civil court's authority under N.C.G.S. § 1A-1, Rule 60(b) (2003).
Accordingly, we find it relevant that there is no general right of
immediate appeal from an interlocutory order entered pursuant to
Rule 60(b). See Bailey v. Gooding
, 301 N.C. 205, 270 S.E.2d 431
(1980) (dismissing appeal from interlocutory order allowing motion
to set aside default judgment). Nor is there a general right of
immediate appeal from an order setting aside a prior dismissal.
See, e.g., Waters v. Personnel, Inc.
, 294 N.C. 200, 240 S.E.2d 338
(1978) (holding no substantial right implicated by appeal from
order setting aside earlier order for summary judgment); Yang v.
Three Springs Inc
., 142 N.C. App. 328, 542 S.E.2d 666 (2001)
(dismissing as interlocutory an appeal from order rescinding
We conclude that there is no general right to
immediate review of the Commission's order setting aside or
modifying an earlier order of a deputy Commissioner. We also
conclude that no substantial right will be lost by delaying appealuntil final resolution of plaintiff's claims. Defendants argue
that, if their appeal is dismissed, they will be required to incur
significant litigation costs. However, the mere avoidance of a
rehearing on a motion or the avoidance of a trial when summary
judgment is denied is not a 'substantial right.' LaFalce v.
, 76 N.C. App. 565, 568, 334 S.E.2d 236, 238 (1985). We
conclude that dismissal of the present interlocutory appeal will
not jeopardize a substantial right.
Defendants Sunrock and ITT also argue that the Commission's
authority to modify or set aside an earlier order of dismissal
assumes a timely appeal. Defendants cite no authority for this
statement, and Hogan
indicates otherwise. Indeed, the
therein did not appeal the involuntary dismissal of his claims, and
his subsequent claim was filed after a much longer time interval
than in the instant case. Defendant Wake County Board of Education
makes a similar argument that, absent an appeal from the dismissal,
the Commission lacks authority to modify or set it aside. Again,
indicates otherwise. See also Jenkins v. Piedmont Aviation
., 147 N.C. App. 419, 557 S.E.2d 104 (2001) (holding that
Commission has the authority, analogous to court's authority under
Rule 60(b), to review earlier order of deputy Commissioner, even in
the absence of an appeal or motion for review), disc. review
, 356 N.C. 303, 570 S.E.2d 724 (2002).
We conclude that plaintiff's motion for dismissal should be
granted and defendants' appeal
Judges GEER and THORNBURG concur.
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