Head v NC State Rutherford Co., (05-1015) 04/18/2006

NO. COA05-1015

NORTH CAROLINA COURT OF APPEALS

Filed: 18 April 2006

TIMOTHY DANIEL HEAD,
Plaintiff

v .                             Rutherford County
                                No. 04 CVS 1395
NORTH CAROLINA STATE
RUTHERFORD COUNTY
SHERIFF GOOD, respondeat superior,
in individual and professional
capacity, Lynn A. Putman, Magistrate,
in individual and professional
capacity, Town of Forest City, Chief
Chapman, respondeat superior, in
individual and professional capacity,
Sgt. Evansek, in individual and
professional capacity, Cpl. Bradley,
in individual and professional capacity,
Officer Eric Billings, in individual
and professional capacity, Officer
Anthony Fields, in individual and
professional capacity, Officer Roach,
in individual and professional capacity,
Shelly Conner Head, Myra T. Conner,
Ernie Skidmore, Shelly Skidmore,
John Does, Jane Does
         Defendants

Appeal by plaintiff from order entered 16 February 2005 by Judge Zoro J. Guice, Jr., in Rutherford County Superior Court. Heard in the Court of Appeals 7 March 2006.

    Timothy Daniel Head, pro se.

    Attorney General Roy Cooper, by Assistant Attorney General David J. Adinolfi II, for the State and Magistrate Lynn A. Putman.

    Moss, Mason & Hill, by William L. Hill for defendants- appellees Town of Forest City, Chief Chapman, Sergeant Evansek, Corporal Bradley, Officer Eric Billings, Officer Anthony Fields, and Officer Roach.
    Womble Carlyle Sandridge & Rice, by Scott D. MacLatchie for defendants-appellees Rutherford County and Sheriff Good.

    CALABRIA, Judge.

    Timothy Daniel Head (“plaintiff”) appeals the trial court's grant of multiple motions to dismiss to the State of North Carolina and Magistrate Putman (“the State”), Rutherford County and Sheriff Good (“the County”), and the Town of Forest City, Chief Chapman, Sergeant Evansek, Corporal Bradley, and Officers Billings, Fields, and Roach (“the Town”). We dismiss as interlocutory.
    On 9 November 2004, plaintiff filed a complaint alleging 19 causes of action, including negligence, intentional infliction of emotional distress, and false imprisonment, against the State, the County, the Town, Shelly Conner Head and Myra T. Conner (“the Conners”), Ernie Skidmore and Shelly Skidmore (“the Skidmores”), and unidentified John Does and Jane Does. On 30 December 2004, plaintiff filed an amended complaint. On 14 January 2005, the Conners filed an answer and motion to dismiss. The State, the County, and the Town all filed motions to dismiss which were granted. Plaintiff appeals.
    “A judgment is either interlocutory or the final determination of the rights of the parties.” N.C. Gen. Stat. § 1A-1, Rule 54(a) (2005). “'A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.'” McCutchen v. McCutchen, __ N.C. __, __, 624 S.E.2d 620, 622 (2006) (quoting Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)). “Any order resolvingfewer than all of the claims between the parties is interlocutory.” Id. 624 S.E.2d at 622-23. “'Generally, there is no right of immediate appeal from interlocutory orders and judgments.'” State v. Sanchez, __ N.C. App. __, __, 623 S.E.2d 780, 781 (2005) (quoting Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999)). Nevertheless, “there are two situations in which an appeal of right lies from an order that is interlocutory.” Hudson- Cole Development Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). First, “where the order represents a final judgment as to one or more but fewer than all of the claims or parties' and the trial court certifies in the judgment that there is no just reason to delay the appeal,” id. (citation and internal quotation marks omitted) (emphasis added), an appeal of right lies. “Secondly, a party may appeal an interlocutory order where delaying the appeal will irreparably impair a substantial right of the party.” Id.
    In the instant case, the trial court granted motions to dismiss the State, the County, and the Town. However, the Skidmores failed to file an answer and/or a motion to dismiss in response to plaintiff's complaint. Additionally, the record fails to reveal whether the trial court ever ruled on the Conners' motion to dismiss. Consequently, pursuant to McCutchen, supra, the motions to dismiss granted by the trial court with respect to the State, the County, and the Town did not dispose of the cause as to all parties. Moreover, neither of the two situations described in Hudson, supra, whereby a party can appeal an interlocutory orderapply in the instant case. First, the trial court did not certify any of the judgments for immediate appeal pursuant to Rule 54(b). Secondly, no substantial right is involved. Thus, plaintiff's appeal is dismissed as interlocutory.
    Dismissed.
    Judges McGEE and GEER concur.
    Report per Rule 30(e).