Platinum Construction v Stanley, (05-151) 01/17/2006

Appeal by third party defendant from an order entered 10 August 2004 by Judge W. Douglas Albright in Forsyth County Superior Court. Heard in the Court of Appeals 9 January 2006.

    House & Tippett, PLLC, by Scott K. Tippett, for plaintiff- appellant and counterclaim defendant-appellant.

    Randolph M. James, P.C., by Randolph M. James, for defendant- appellee.

HUNTER, Judge.

    Third party defendant Andrew J. Filipowski (“appellant”) appeals from an order denying his motion to dismiss the amended counterclaim of defendant Ricky A. Stanley (“defendant”). Defendant has filed a motion to dismiss the appeal as interlocutory. For the reasons discussed below, we allow defendant's motion and dismiss the appeal.    On 13 June 2003, Platinum Construction Corp. (“plaintiff”) filed a complaint against defendant and his wife and son, asserting claims against defendant for, inter alia, embezzlement, conversion, and breach of his fiduciary duty as vice-president and general manager of plaintiff corporation. In his “Answer and Counterclaim[,]” defendant alleged that plaintiff “company is an alter ego to [appellant]” and asserted causes of action styled “counterclaims” against appellant for breach of contract and misrepresentation. Defendant subsequently filed a “First Amended Counterclaim” which included the following allegations:
        4.    . . . [Appellant] had the actual and ultimate control and ownership of the plaintiff business and because he so dominated and controlled the company in the following ways:

            (1)    Complete domination of not only the finances but of policy and business practice in respect to every aspect of the plaintiff's activities such that the corporation had no separate mind, will or existence of its own; and

            (2)    Such control by [appellant] has permitted him to prosecute this claim against [defendant] through the corporation, thereby concealing and avoiding the personal commitments [appellant] made to the defendant as set forth herein below[.]

            . . .

        9.    Plaintiff's complaint is an effort to divest [defendant] of his interest in the deal he struck with [appellant]. At all times [appellant] was acting as an agent for [plaintiff] and/or as its alter ego.
Defendant's amended filing also included a third “counterclaim” against appellant for breach of fiduciary duty, in which he directly averred that appellant “so completely dominated plaintiff corporation, [appellant] is liable under the alter ego doctrine.”
    Appellant filed a motion “to dismiss the Defendant Ricky A. Stanley's First Amended Third Party Complaint (denominated 'First Amended Answer and Counterclaim of Defendant Ricky A. Stanley' by the Defendant)[,]” for failure to state a permissible claim for relief against a third party under N.C.R. Civ. P. 14. In its order denying appellant's motion, the trial court found no grounds to dismiss defendant's counterclaim against appellant for failure to comply with the requirements for a third party complaint under N.C.R. Civ. P. 13 and 14, or for failure “to seek a court order prior to asserting [his] claims against [appellant.]” Appellant filed timely notice of appeal from the order.
    In challenging the denial of his motion to dismiss, appellant claims that the court erred in treating defendant's causes of action as counterclaims, inasmuch as they were raised not against plaintiff corporation but against appellant, who “was not [a] party to the suit[.]” Because defendant did not seek to hold appellant “liable to the defendant for some or all of the plaintiff's claim[s] against the defendant[,]” appellant insists that defendant was not permitted to bring him into the action as a third-party defendant under N.C.R. App. P. 14(a). Appellant further contends that defendant was required to obtain leave of court under Rule 14 before filing what amounts to a third-party complaint. Assumingthat defendant's filing asserted valid counterclaims against a party other than plaintiff, see N.C.R. Civ. P. 13(h), appellant faults defendant for failing to obtain leave of court before adding him as a party to the action.
    In his motion to dismiss the appeal, defendant argues, inter alia, that the order denying appellant's motion to dismiss is a nonappealable interlocutory order. Appellant concedes that the order is interlocutory but claims it threatens a substantial right and is thus subject to immediate appeal. Citing Williams v. Levinson, 155 N.C. App. 332, 573 S.E.2d 590 (2002), per curiam aff'd, 357 N.C. 243, 580 S.E.2d 692 (2003), and Phillips v. Restaurant Mgmt. of Carolina, L.P., 146 N.C. App. 203, 207-08, 552 S.E.2d 686, 689 (2001), he avers that the denial of his motion to dismiss leaves him at risk of “two trials on the same facts and same issues” if he must wait to appeal from the final judgment.
    The interlocutory order at issue here did not dispose of any individual claim or party to the instant action; nor was the order certified for immediate appeal under N.C.R. Civ. P. 54(b). Accordingly, “the order is immediately appealable only if it affects a substantial right.” City of Winston-Salem v. Yarbrough, 117 N.C. App. 340, 347, 451 S.E.2d 358, 363 (1994) (citing N.C. Gen. Stat. §§ 1-277, 7A-27(d)). To obtain an immediate appeal, “[t]he burden is on the appellant to show '(1) the [order] affects a right that is substantial; and (2) the deprivation of that substantial right will potentially work injury to him if not corrected before appeal from final judgment.'” Powell v. Bulluck,155 N.C. App. 613, 617, 573 S.E.2d 699, 703 (2002) (quoting Collins v. Talley, 135 N.C. App. 758, 760, 522 S.E.2d 794, 796 (1999)).
    Generally, the denial of a motion to dismiss does not affect a substantial right. See, e.g., Duke University v. Bryant-Durham Electric Co., 66 N.C. App. 726, 727, 311 S.E.2d 638, 639 (1984). As appellant notes, we have previously recognized a litigant's substantial right “to avoid two trials on the same issues, which could result in different juries rendering inconsistent verdicts[.]” Williams, 155 N.C. App. at 335, 573 S.E.2d at 592. Here, however, the denial of appellant's motion to dismiss does not threaten such an outcome. Defendant's counterclaims are based at least in part on his assertion that plaintiff's corporate form is a mere fiction, and that plaintiff and appellant should be “'treated as one and the same person'” for purposes of this action. Becker v. Graber Builders, Inc., 149 N.C. App. 787, 790, 561 S.E.2d 905, 908 (2002) (discussing alter ego doctrine) (quoting Henderson v. Finance Co., 273 N.C. 253, 260, 160 S.E.2d 39, 44 (1968)). By allowing defendant to assert his causes of action against appellant in the same action as plaintiff's claims against defendant, the trial court's interlocutory order serves to avoid, rather than create, the risk of separate trials on issues of fact common to the parties' various claims. Under these circumstances, we find nothing that would remove the order from the general rule of nonappealability.
    In contrast to the case at bar, both Williams and Phillips involved a plaintiff's appeal from an interlocutory order grantingsummary judgment to some, but not all, of the defendants in a suit for damages. In finding the summary judgment awards immediately appealable, we noted that the plaintiff's claims against the various defendants shared common issues of fact. Williams, 155 N.C. App. at 336, 573 S.E.2d at 592; Phillips, 146 N.C. App. at 207, 552 S.E.2d at 689. Because the plaintiff in these cases faced the prospect of proceeding in one trial against the defendants who were not granted summary judgment, only to be required to have a second trial on the same factual issues against the remaining defendants if their summary judgment award was reversed on appeal from the final judgment entered in the first trial, we found the order of summary judgment affected a substantial right of the plaintiff. Williams, 155 N.C. App. at 336, 573 S.E.2d at 592 (“if it was later determined that the trial court improperly entered summary judgment for defendant CCSA, the distinct possibility exists that a second trial would be required as to defendant CCSA, since CCSA would not have had an opportunity to participate in the previous trial”); Phillips, 146 N.C. App. at 207, 552 S.E.2d at 689.
    Because appellant has not met his burden of establishing grounds for an immediate appeal from the trial court's interlocutory order, we allow defendant's motion to dismiss.
    Dismissed.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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