An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-879


Filed: 21 March 2006


    v.                            Union County
                                No. 04 CVS 00485

    Appeal by Defendant Valley Motor, LLC, d/b/a Tim Mitchell's Valley Chevrolet, from an order entered 18 February 2005 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 20 February 2006.
    Brown Brown & Brown, PLLC, by Charles P. Brown, for Plaintiff- Appellees.

    Teague Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for Defendant-Appellant Valley Motor, LLC, d/b/a Tim Mitchell's Valley Chevrolet.

    Cranfill Sumner & Hartzog, LLP, by Lawrence M. Baker, for Defendant Michael Parsons.

    STEPHENS, Judge.

    Defendant Valley Motor, LLC, d/b/a Tim Mitchell's Valley Chevrolet, appeals from an order of the trial court denying its motion to amend its answer. In support of its appeal, Defendant Valley Motor brings forth three assignments of error. For thereasons stated herein, we dismiss this appeal as interlocutory.
    On 5 April 2002, Plaintiff Bobby Efird and Defendant Michael Parsons were involved in a vehicular accident in which Defendant Parsons was driving a truck owned by Defendant Valley Motor and Plaintiff Bobby Efird was driving a motorcycle. Plaintiff Bobby Efird allegedly sustained serious bodily injuries as a result of the accident.
    On 12 March 2004, Plaintiffs filed a complaint against Defendants alleging that the accident proximately resulted from Defendant Parsons's negligence in the operation of the truck. Plaintiffs further alleged that, at the time of the accident, Defendant Parsons was acting as an agent for Defendant Valley Motor. Upon motion and order to extend their time to file their answer, Defendants filed an answer on 24 May 2004. At the time the answer was filed, Defendants were jointly represented by the same attorney.
In three separate paragraphs of their complaint, Plaintiffs alleged that, at the time of the accident, Defendant Parsons was “driving the. . . truck with the knowledge, permission and consent of” the corporate Defendant “as the agent of said Defendant, by and within the course and scope of said agency.” Defendants' answer to each of these three paragraphs of the complaint was as follows: “[I]t is admitted that Defendant Parsons was driving theaforementioned automobile with the knowledge, permission and consent of Defendant Valley Motor, LLC d/b/a Tim Mitchell's Valley Chevrolet.”
Plaintiffs' first interrogatory requests were served on the individual and corporate Defendants at the time the complaint was filed, but the parties reached an agreement through counsel to participate in voluntary mediation before completing discovery. Mediation was unsuccessful in resolving the case; however, a further agreement was reached between counsel that Defendant Parsons would respond to the interrogatories directed to him, and his responses were thereafter served on Plaintiffs on 13 July 2004. Agreement was also reached to depose Defendant Parsons. Such deposition was set for 3 September 2004.
By the time the parties appeared for the deposition, Defendant Valley Motor had retained separate counsel to represent it in further proceedings. On 13 September 2004, Defendant Valley Motor, through its new counsel, filed a motion to amend its answer to deny that Defendant Parsons was an agent of Defendant Valley Motor. After a hearing on 10 December 2004, the trial court denied Defendant Valley Motor's motion to amend, citing that it would cause undue delay and material prejudice to Plaintiffs. Defendant Valley Motor appeals from that order. Defendant Parsons has not participated in this appeal.    Although Defendant Valley Motor brings forth three assignments of error, the sole issue raised by those assignments can be stated thusly: whether the trial court erred in denying Defendant Valley Motor's motion to amend its answer. However, we do not reach the merits of Defendant's appeal because we hold that the appeal is interlocutory, does not affect a substantial right and, therefore, is not immediately appealable.
    An interlocutory order is an order made during the pendency of an action that does not dispose of the case, but rather requires further action by the trial court to finally determine the rights of all the parties involved in the controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). There is no right to appeal from an interlocutory order unless: (1) the trial court made the required certification under Rule 54 of the Rules of Civil Procedure; or (2) the order affects a substantial right that would be lost without immediate review. Eckard v. Smith, 166 N.C. App. 312, 316, 603 S.E.2d 134, 137-38 (2004), aff'd per curiam, 360 N.C. 51, 619 S.E.2d 503 (2005). The purpose of this rule is “to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.” Fraser v. Di Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218, disc. rev. denied, 315 N.C.183, 337 S.E.2d 856 (1985). In general, appeals from orders allowing motions to amend are interlocutory and subject to dismissal. Howard v. Ocean Trail Convalescent Center, 68 N.C. App. 494, 496, 315 S.E.2d 97, 99 (1984).
    In the instant case, Defendant Valley Motor argues that its appeal is not interlocutory because the trial court's order affects its substantial right to avoid two trials on the same issue. Defendant Valley Motor asserts that the issue of agency will be present in both trials if this appeal is ruled interlocutory and this Court does not resolve the question at this time of whether its motion to amend its answer should have been allowed. While we agree with Defendant Valley Motor that, under certain circumstances, the right to avoid two trials may affect a substantial right, we disagree that such a potential arises in this case.
    “[T]he possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.” Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). This rule requires the party asserting a substantial right to show that the same factual issues would be present in both trials, and the possibility ofinconsistent verdicts on those issues exists. Moose v. Nissan of Statesville, 115 N.C. App. 423, 444 S.E.2d 694 (1994).
    In Johnson v. Johnson, 7 N.C. App. 310, 311, 172 S.E.2d 264, 265 (1970), this Court stated:
Where a material fact is alleged in the complaint and admitted in the answer, it will, for the purpose of the trial, be taken as true and beyond the range of questioning. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Royster v. Hancock, 235 N.C. 110, 69 S.E.2d 29. It has the same effect for the plaintiff as if found by the jury. 2 McIntosh, N.C. Practice 2d, s 1235. Evidence to controvert the facts so admitted is properly excluded. Fleming v. Norfolk Southern R.R., 160 N.C. 196, 76 S.E. 212.

    Because the alleged agency relationship between Defendant Parsons and Defendant Valley Motors was not denied when Defendants' answer was filed, agency is deemed admitted and, under the current posture of this case, would not be an issue for determination at trial. See, e.g., Markham v. Johnson, 15 N.C. App. 139, 189 S.E.2d 588, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972). On the contrary, the jury would decide this case on issues of negligence, contributory negligence and damages. Should an appeal be taken from that jury's verdict and this Court were to agree with Defendant Valley Motors that Judge Taylor abused her discretion in denying its motion to amend the answer to make agency an issue, then a second trial would involve only the nature of therelationship between Defendant Parsons and Defendant Valley Motor, leaving it for a second jury to decide only the agency issue.
    Contrary to Defendant Valley Motor's assertions, even if this Defendant is ultimately permitted to try the issue of agency, there is no danger for inconsistent verdicts by two different juries on this issue. Accordingly, we hold that there is no substantial right affected by the trial court's denial of Defendant Valley Motor's motion to amend and we dismiss this appeal.
    Chief Judge MARTIN and Judge WYNN concur.
    Report per Rule 30(e).

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