Appeal and Error--appealability--denial of motion to enforce settlement
An appeal from the denial of a motion to enforce a settlement agreement in a personal
injury action was dismissed as interlocutory even though the parties had agreed that a substantial
right was affected. The Court must determine whether the appeal is premature, and the right to
settle a claim has been held not to affect a substantial right. Defendants may appeal the denial of
their motion once there is a final judgment.
Kelly & West Attorneys, by J. David Lewis, and The Law Offices
of David Hartley, by David V. Hartley, for plaintiff-appellee.
Pinto, Coates, Kyre & Brown, PLLC, by Richard L. Pinto and
Brady A. Yntema, for defendants-appellants.
WYNN, Judge.
Interlocutory orders that have not been certified by the trial
court and do not affect a substantial right are not immediately
appealable.
Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23-24,
437 S.E.2d 674, 677 (1993).
In this case, Defendants appeal from
an order denying a Motion to Enforce Settlement in a personal
injury action. Because this Court has previously held that an
appeal from a denial to enforce a settlement agreement in a
workers' compensation case did not affect a substantial right, we
likewise must conclude that an appeal from a denial to enforce a
settlement agreement in a personal injury action does not affect asubstantial right. Ledford v. Asheville Hous. Auth., 125 N.C. App.
597, 600, 482 S.E.2d 544, 546, disc. review denied, 346 N.C. 280,
487 S.E.2d 550 (1997). Accordingly, we dismiss this appeal.
Defendants (Tony Dale Thompson, Standard Tools and Equipment
Company, and Standard Tools Acquisition Corporation), do not
contest any of the findings of fact in the trial court's order
denying their motion to enforce a settlement agreement. Summarily,
the findings of fact state that Plaintiff Edith Milton was involved
in an automobile accident and hired attorney David Hartley and the
law firm of Kelly & West to represent her in her claim for personal
injuries against Defendants. Attorneys J. Thomas West and J. David
Lewis were both members of the law firm Kelly & West and were
involved in the handling of Ms. Milton's case.
On 11 April 2003, an unsuccessful mediated settlement
conference was held with Ms. Milton, her husband (James Milton),
and all attorneys present. However, sometime afterward, Ms. Milton
authorized her husband to contact her attorneys “to authorize
settlement negotiations with Defendant to a minimum of
$450,000.00.” In turn, Mr. Milton “telephoned Attorney Lewis at
the firm of Kelly & West and advised Attorney Lewis that [Ms.
Milton] was interested in settling her personal injury case, that
they would like to receive the maximum amount they could get, but
that $450,000.00 would be the 'floor' or minimum amount” that Ms.
Milton would accept for settlement. Mr. Milton informed Mr. Lewis
that they did not want to leave a $450,000.00 offer “on the table”if they could get it. Mr. Lewis relayed this conversation to Mr.
West and Mr. Hartley.
On 18 July 2003, Mr. Lewis telephoned counsel for Defendants
and left a voicemail message advising Defendants' counsel of a new
settlement demand of $553,698.00. Mr. Lewis requested that
Defendants' counsel contact either him or Mr. West.
On 21 July 2003, Mr. West contacted Defendants' counsel to
resume settlement negotiations. Ultimately, counsel for Defendants
offered $460,000.00 in settlement which Mr. West accepted and
confirmed by letter. A copy of the confirmation letter was sent to
Ms. Milton. Defendants' counsel confirmed this settlement by
letter dated 24 July 2003.
On 29 July 2003, Mr. Milton called Mr. Lewis and advised him
that at a recent family reunion several family members thought Ms.
Milton deserved more money. Mr. Milton acknowledged that he had
authorized settlement with a “floor” of $450,000.00, but Ms. Milton
no longer wanted to settle her case for that amount.
On 7 October 2003, Defendants' counsel sent a settlement check
in the amount of $460,000.00 to Ms. Milton's attorneys and on 16
October 2003, sent Releases and Dismissals to be executed by Ms.
Milton. Ms. Milton neither endorsed the check nor signed the
release or dismissal.
On 23 October 2003, Defendants filed a Motion to Enforce
Settlement. Following a hearing, the trial court denied the motion
concluding that Mr. West “did not have legal capacity to settle the
case on behalf of [Ms. Milton], and therefore there is nosettlement that this Court can enforce.” Defendants appealed from
the denial of their motion to enforce the settlement agreement.
________________________________________
The dispositive
issue is whether this appeal is premature.
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 rights of all
parties involved in the controversy. See Veazey v. City of Durham,
231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950); Flitt v. Flitt, 149
N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002). Generally, there
is no right to immediate appeal from an interlocutory order. See
N.C. Gen. Stat. § 1A-1, Rule 54(b) (2004); Veazey, 231 N.C. at 362,
57 S.E.2d at 381.
In the instant case, the trial court's order did
not resolve Ms. Milton's personal injury claim. We conclude that
the order from which Defendants appeal was interlocutory.
There are two instances where a party may appeal interlocutory
orders: (1) when there has been a final determination as to one or
more of the claims and the trial court certifies that there is no
just reason to delay the appeal, and (2) if delaying the appeal
would prejudice a substantial right. See Liggett Group Inc., 113
N.C. App. at 23-24, 437 S.E.2d at 677. Here, the trial court made
no such certification. Thus, Defendants are limited to the second
route of appeal, namely where “the trial court's decision deprives
the appellant of a substantial right which would be lost absent
immediate review.” N.C. Dep't of Transp. v. Page, 119 N.C. App.
730, 734, 460 S.E.2d 332, 334 (1995). In such cases, we may reviewthe appeal under sections 1-277(a) and 7A-27(d)(1) of the North
Carolina General Statutes. N.C. Gen. Stat. §§ 1-277(a) and 7A-
27(d)(1) (2004). “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.” Flitt, 149 N.C. App. at 477, 561 S.E.2d
at 513. “Whether an interlocutory appeal affects a substantial
right is determined on a case by case basis.” McConnell v.
McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801, 803 (2002).
Although both parties stipulate that this appeal affects a
substantial right, this Court must determine that a substantial
right does in fact exist or the appeal is premature. See Bailey v.
Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (Court of
Appeals should sua sponte address if appeal is interlocutory).
We
find that no substantial right is affected by this appeal.
Defendants argue in their brief that “the right to settle a
disputed claim is a substantial right of the parties in this case
which will be prejudiced should this matter be allowed to proceed
without immediate appellate review.” (Appellant's Brief p. 9).
But Defendants fail to cite any authority supporting their
argument.
Indeed, the outcome of this issue is controlled by a prior
decision of this Court holding that an appeal from a denial to
enforce a settlement agreement in a workers' compensation case did
not affect a substantial right nor would injury result if the
appeal were not immediately heard. Ledford, 125 N.C. App. at 600,482 S.E.2d at 546; see also Ratchford v. C.C. Mangum Inc., 150 N.C.
App. 197, 200, 564 S.E.2d 245, 248 (2002) (appeal from Industrial
Commission's opinion that the “clincher” settlement agreement was
void was not shown to affect a substantial right).
As in Ledford, this appeal does not affect a substantial
right. 125 N.C. App. at 600, 482 S.E.2d at 546. Defendants may
still appeal the denial of their Motion to Enforce Settlement once
there is a final judgment; this right will not be lost.
Flitt, 149
N.C. App. at 477, 561 S.E.2d at 513. In light of Ledford, we must
hold that this appeal is
interlocutory in nature and does not
affect a substantial right; accordingly, it is dismissed.
Dismissed.
Judges TYSON and ELMORE concur.
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