JAMES PEVERALL, JR., and
OTHERS SIMILARLY SITUATED
v
.
Alamance County
No. 00 CVS 1741
THE COUNTY OF ALAMANCE
Randolph M. James for plaintiff-appellant.
David I. Smith, and Hedrick, Eatman, Gardner & Kincheloe,
L.L.P., by Edward L. Eatman, Jr., Elizabeth A. Martineau, and
Luke P. Sbarra for defendant-appellee.
WYNN, Judge.
Plaintiff, James Peverall, Jr., appeals from orders of the
trial court: (1) denying his motion to amend the complaint; (2)
granting Alamance County's motion for protective orders; (3)
granting Alamance County's motion for partial summary judgment; and
(4) denying class certification. After careful review, we dismiss
Peverall's first three arguments and remand in part for further
findings of fact on class certification.
This is the second appeal of this case to this Court.
Peverall v. County of Alamance, 154 N.C. App. 426, 573 S.E.2d 517
(2002) review denied 356 N.C. 676, 577 S.E.2d 632 (2003). The
facts of this case, stated in greater detail in the earlieropinion, show that Peverall worked as an Emergency Medical
Technician for Alamance County until two vehicular accidents forced
him to retire based on disability. Following his retirement on
disability, Alamance County adopted a new retroactive policy that
required county employees to have completed twenty years of
continuous employment (instead of five years required under the old
policy) to receive benefits. Although Peverall qualified under
the old policy with more than five years of employment, he did not
have the requisite twenty years of service to qualify for benefits
under the new policy.
Peverall brought suit against the county alleging tort,
contract, and constitutional claims. The tort claims were
previously dismissed based on sovereign immunity. Peverall
appealed this decision, but this Court affirmed the decision of the
trial court. Id.
After the first appeal, both parties requested a trial date in
August 2003. Before trial, the trial court granted Alamance County
motions for protective orders regarding the taking of Alamance
County Commissioners' depositions, and to limit the number of
depositions.
Thereafter, on 2 September 2003, Alamance County moved for
summary judgment and Peverall moved for class certification. The
next day, Peverall moved to amend the amended complaint, and on 15
September 2003, he moved to amend his motion for class
certification. On 21 October 2003, the trial court denied class
certification, denied the motion to amend, and granted partialsummary judgment to Alamance County on Peverall's 42 U.S.C. Section
1983 claim.
By this appeal, Peverall first contends the trial court erred
in denying his motion to amend the complaint, and granting Alamance
County's motions for protective orders and partial summary
judgment. Alamance County responds that Peverall's appeal of these
issues are impermissibly interlocutory. We agree.
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, 361-62, 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 appeal from an interlocutory order.
See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003); Veazey, 231 N.C. at
362, 57 S.E.2d at 381. But 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. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d
674, 677 (1993).
Here, the trial court made no such certification. Thus,
Peverall is 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 ofTransp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334
(1995). In such cases, we may review the appeal under sections
1-277(a) and 7A-27(d)(1) of the North Carolina General Statutes.
See id. “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.
Under North Carolina law, orders denying a motion to amend
pleadings are interlocutory and do not affect a substantial right.
See Buchanan v. Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509
(1982); Funderburk v. Justice, 25 N.C. App. 655, 656, 214 S.E.2d
310, 311 (1975). In addition, Peverall made no argument that the
trial court's denial of his motion to amend the complaint affected
a substantial right. Accordingly, we dismiss this assignment of
error.
Protective orders and a denial of a motion to compel are
discovery orders. Discovery orders are interlocutory and generally
do not affect a substantial right which would be lost if the ruling
were not reviewed before the final judgment. Sharpe v. Worland,
351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999); see Dunlap v.
Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807 (1986) (order to
produce business records and documents interlocutory and did not
affect a substantial right). But our courts have recognized two
narrow exceptions to the rule against direct appeal from discovery
orders: where such orders include a finding of contempt or othersanctions, Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d
191, 198 (1976), or where a party asserts a statutory privilege
which directly relates to the matter to be disclosed under an
interlocutory discovery order. Sharpe, 351 N.C. at 166, 522 S.E.2d
at 581. As the discovery orders in the instant case do not relate
to contempt or sanctions nor does any party assert a statutory
privilege, the orders do not affect a substantial right.
Accordingly, we dismiss these assignments of error.
An order granting partial summary judgment is generally an
interlocutory order, not a final order, as it does not completely
dispose of the case. Yordy v. N.C. Farm Bureau Mut. Ins. Co., 149
N.C. App. 230, 231, 560 S.E.2d 384, 385 (2002). This Court has
repeatedly held that avoiding trial on the merits is not a
substantial right. Duquesne Energy, Inc. v. Shiloh Indus.
Contractors, Inc., 149 N.C. App. 227, 229, 560 S.E.2d 388, 390
(2002); see Leake v. Sunbelt Ltd. of Raleigh, 93 N.C. App. 199,
206, 377 S.E.2d 285, 289, disc. review denied, 324 N.C. 578, 381
S.E.2d 774 (1989) (citing Horne v. Nobility Homes, Inc., 88 N.C.
App. 476, 363 S.E.2d 642 (1988)). Peverall has not identified a
substantial right which would be irremediably adversely affected by
this Court's refusal to hear this interlocutory appeal.
Accordingly, we likewise dismiss this assignment of error.
As to the sole issue remaining on appeal_-whether the trial
court erred in denying class certification--Alamance County
concedes that although interlocutory, the denial of class
certification affects a substantial right. Frost v. Mazda Motor ofAm., Inc., 353 N.C. 188, 193, 540 S.E.2d 324, 327 (2000); Pitts v.
Am. Sec. Ins. Co., 144 N.C. App. 1, 9, 550 S.E.2d 179, 187 (2001).
Therefore, appeal on this issue is properly before us.
When considering a motion for class certification under Rule
23 of the North Carolina Rules of Civil Procedure, the trial court
must first determine whether the party seeking certification has
met its burden of showing that the three prerequisites to
certification of a class have been met. English v. Holden Beach
Realty Corp., 41 N.C. App. 1, 7, 254 S.E.2d 223, 230, disc. review
denied, 297 N.C. 609, 257 S.E.2d 217 (1979). The first
prerequisite to certification is the existence of a class.
Faulkenbury v. Teachers' & State Employees' Ret. Sys. of N.C., 345
N.C. 683, 697, 483 S.E.2d 422, 431 (1997). “[A] 'class' exists
under Rule 23 when the named and unnamed members each have an
interest in either the same issue of law or of fact, and that issue
predominates over issues affecting only individual class members.”
Crow v. Citicorp Acceptance Co., Inc., 319 N.C. 274, 280, 354
S.E.2d 459, 464 (1987).
The second prerequisite to certification is that the named
class representatives will “fairly and adequately represent the
interests of all members of the class[.]” Faulkenbury, 345 N.C. at
697, 483 S.E.2d at 431. To represent fairly and adequately the
class members, the class representatives must have no conflict of
interest with the members of the class and a genuine personal
interest (not a mere technical interest) in the outcome of the
case. Id. The third prerequisite to certification is that the proposed
class members are “so numerous that it is impractical to bring them
all before the court[.]” Id. The test for “impracticability” is
“not 'impossibility' of joinder, but only difficulty or
inconvenience of joining all members of the class.” English, 41
N.C. App. at 6-7, 254 S.E.2d at 229. “The number is not dependent
upon any arbitrary limit but rather upon the circumstances of each
case.” Id. at 7, 254 S.E.2d at 229.
Moreover, our Supreme Court has added the requirement that,
“fundamental fairness and due process dictates that adequate notice
of the class action be given to [members of the class].” Crow, 319
N.C. at 283, 354 S.E.2d at 466. In addition, the trial court has
broad discretion in determining whether class certification is
appropriate and is not limited to those prerequisites which have
been expressly enunciated in either Rule 23 or in Crow. Id. at
284, 354 S.E.2d at 466; Perry v. Union Camp Corp., 100 N.C. App.
168, 170, 394 S.E.2d 681, 682 (1990).
Since the decision to grant or deny class certification rests
within the sound discretion of the trial court, the appropriate
standard for appellate review is whether the trial court's decision
manifests an abuse of discretion. Nobles v. First Carolina
Communications, Inc., 108 N.C. App. 127, 132, 423 S.E.2d 312, 315
(1992). In this regard, an appellate court is bound by the court's
findings of fact if they are supported by competent evidence.
Howell v. Landry, 96 N.C. App. 516, 523, 386 S.E.2d 610, 614
(1989), disc. review denied, 326 N.C. 482, 392 S.E.2d 90 (1990). Here, the trial court denied class certification after having
concluded that,
the plaintiff has failed to establish that the
class would be so numerous as to make it
impractical to bring each member before the
Court; that adequate notice could be given to
class members prior to a trial date already
set prior to the filing of plaintiff's Motion
for Class Certification . . .
The trial court made findings of fact that,
5. As of July 24, 2003, seven (7) employees
of the County (including plaintiff) had been
denied health and life insurance benefits due
to the new policy;
6. The interests of each potential class
member as to damages could be expected to vary
greatly;
7. Plaintiff's Motion for Class Certification
was filed on September 3, 2003, two weeks
prior to a scheduled summary judgment hearing
and three weeks prior to the scheduled trial
date;
8. The plaintiff's failure to seek a ruling
from the Court with respect to class
certification earlier in the proceedings has
adversely impacted his ability to establish
that adequate notice can be given to potential
members of the class prior to the trial date
(now December 1, 2003).
“[F]indings of fact are required by the trial court when
rendering a judgment granting or denying class certification in
order for the appellate courts to afford meaningful review under
the abuse of discretion standard.” Nobles, 108 N.C. App. at 133,
423 S.E.2d at 316 (findings of fact inadequate to allow this Court
to determine whether the trial court's decision to deny class
certification was based upon competent evidence). Such findingsmust be made with sufficient specificity to allow effective
appellate review. Id.
As in Nobles, the findings of fact in the instant case were
inadequate to allow us an effective appellate review. Id. For
instance, finding of fact five, dealing with the numerosity
requirement states that there are six other people similarly
situated to Peverall. But the transcript of the hearing on class
certification and interrogatory answers by the county indicate that
there are potentially 376 potential class members, the employees
employed with the County of Alamance who had five but less than
twenty years of service as of 31 July 1999. The findings fail to
address the 376 potential class members, or whether Peverall could
fairly and adequately represent them as named plaintiff. Moreover,
the trial court made no findings regarding the expected variance in
damages; instead, the findings indicate only that variance could be
expected. The record also shows that the trial date had been
frequently moved, however the findings fail to indicate why
adequate notice could not be given.
We conclude that the findings of fact are insufficient to
allow us an effective appellate review of the trial court's denial
of class certification. Accordingly, we remand this issue for more
extensive findings of fact on the issue of class certification.
Dismissed in part, remanded in part.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***