Blue Ridge Savings Bank v Best & Best, (04-1357) 08/02/2005

Appeal by plaintiff from order entered 2 July 2004 by Judge Zoro J. Guice, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 25 July 2005.

John J. Korzen and Biggers & Hunter, PLLC, by John C. Hunter, for plaintiff-appellant.

Patla, Straus, Robinson & Moore, P.A., by Richard S. Daniels, for defendant-appellee.

LEVINSON, Judge.

    Blue Ridge Savings Bank, Inc. (plaintiff) appeals from an order denying its motion to dismiss the counterclaims of defendant Best and Best, PLLC (defendant) and its motion for summary judgment with respect to all claims. The pertinent procedural history is as follows. Plaintiff retained defendant law firm to represent it in a bankruptcy proceeding. On 12 September 2003, plaintiff filed a complaint against defendant alleging that defendant failed to exercise reasonable skill, care and diligence in representing plaintiff and, as a result, plaintiff had lost $21,829.95. Plaintiff had previously filed a grievance with the North CarolinaState Bar in August of 2003 based on defendant's alleged misconduct.
    Defendant answered and counterclaimed alleging, among other things, that plaintiff's State Bar grievance constituted libel per se. Plaintiff subsequently filed a motion to dismiss defendant's counterclaims pursuant to N.C.G.S. § 1A-1, Rules 12(b)(1) and (6) (2003) and a motion for summary judgment on all claims and counterclaims pursuant to N.C.G.S. § 1A-1, Rule 56 (2003). The trial court denied both motions. Plaintiff appeals.
    We must first determine whether the trial court's denial of plaintiff's motions to dismiss and for summary judgment is immediately appealable. "It is well-settled that an order denying a motion for summary judgment is interlocutory, and not generally immediately appealable." Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 725, 518 S.E.2d 786, 787 (1999). Generally, an order denying a motion to dismiss pursuant to Rule 12(b) is ordinarily interlocutory, and not immediately appealable. Allen v. Stone, 161 N.C. App. 519, 521-522, 588 S.E.2d 495, 497 (2003). An interlocutory order is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed. McConnell v. McConnell, 151 N.C. App. 622, 624, 566 S.E.2d 801, 803 (2002).
    As Rule 54(b) certification is not applicable here, plaintiffhas the burden of showing this Court that the order deprives it 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 plaintiff 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).
    Plaintiff argues that the interlocutory order deprives it of a substantial right based upon its claim of immunity to suit for all statements made without malice and intended for transmittal to the North Carolina State Bar pursuant to N.C.G.S. § 84-28.2. In Wallace v. Jarvis, 119 N.C. App. 582, 459 S.E.2d 44 (1995), this Court held that the trial court's denial of the defendant's motion for summary judgment on plaintiff's slander and malicious prosecution claims did not deprive the defendant of a substantial right to claim immunity under N.C.G.S. § 84-28.2, which would be jeopardized absent an immediate appeal. Plaintiff asks this Court to revisit its decision in Wallace in light of our Supreme Court's holding in Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999). Worland, however, deals with an appeal from an interlocutory discovery order and not, as here, from an appeal from the denial of a motion to dismiss and for summary judgment. Id. Like Wallace, our review of the present appeal reveals it does not involve a substantial right of plaintiff that would be jeopardized by postponing appeal of the order until after trial. We also decline to exercise our discretion to treat this purported appeal as apetition for writ of certiorari. Accordingly, plaintiff's appeal must be dismissed.
    Dismissed.
    Judges McGEE and HUDSON concur.
    Report per Rule 30(e).

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