An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1308


Filed: 18 July 2006

TOMMY AKINS and wife,


v .                         Buncombe County
                            No. 05 CVS 1632


    Appeal by defendant from an order entered 5 August 2005 by Judge Gary E. Trawick in Buncombe County Superior Court. Heard in the Court of Appeals 15 May 2006.

    Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr., for plaintiff-appellees.

    Roberts & Stevens, P.A., by Mark C. Kurdys, for defendant- appellant.

    JACKSON, Judge.

    On 2 July 2000, Tommy Akins sought and received diagnosis and treatment for an injury to his left wrist and forearm at Mission St. Joseph's Hospital in Buncombe County, North Carolina. On 18 June 2003, Tommy Akins and Stacy Akins filed an action against Dr. Constantino Cona, Asheville Radiology Associates and Mission St. Joseph Hospital of Western North Carolina, Inc., alleging negligence by Dr. Cona, as an employee, agent or servant of both Asheville Radiology Associates and Mission St. Joseph Hospital ofWestern North Carolina, Inc., during the hospital visit. Thereafter, Mission St. Joseph Hospital of Western North Carolina, Inc. was voluntarily dismissed without prejudice from the lawsuit. The remaining two defendants made an offer of judgment pursuant to Rule 68(a) of the North Carolina Rules of Civil Procedure, which was accepted by plaintiffs on 27 January 2005 and subsequently satisfied.
    On 18 April 2005, Tommy Akins and Stacy Akins (“plaintiffs”) filed an action against Mission St. Joseph's Health System, Inc. (“defendant”), thereby commencing the present lawsuit. Plaintiffs' complaint alleged that defendant, through its agents, employees, and servants, was negligent in providing medical care to Tommy Akins during the hospital visit on 2 July 2000. Defendant moved for summary judgment, contending that the satisfaction of the offer of judgment accepted by plaintiffs in the previous lawsuit discharged defendant from liability to plaintiffs for the same incident. Defendant argued that satisfaction of a judgment pursuant to Rule 68(a) should not be treated any differently from a judgment entered upon a jury verdict, bench trial, or by consent. Plaintiffs argued that Rule 68(a) provides a means whereby adverse parties in a case may settle their differences as between them only, without affecting the legal rights and obligations of others. By order entered 5 August 2005, Judge Trawick denied defendant's motion for summary judgment and defendant now appeals from the denial of its motion.    Before considering defendant's arguments, we first must determine whether defendant's appeal is properly before this Court.     The denial of a motion for summary judgment is interlocutory because “[t]he trial court's order does not completely dispose of the case.” Wallace v. Jarvis, 119 N.C. App. 582, 583, 459 S.E.2d 44, 46 (1995) (citing Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993)). “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) (citing Wallace, 119 N.C. App. at 584, 459 S.E.2d at 46).
    However, an interlocutory order may be appealed immediately if it falls within one of the following two exceptions: (1) when the order is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to Rule 54(b) of our Rules of Civil Procedure; or (2) when the order being challenged affects a “substantial right” of the appellant, which would be lost absent immediate appellate review” pursuant to North Carolina General Statutes, section 1-277 (2005) and North Carolina General Statutes, section 7A-27(d) (2005). Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996) (citations omitted). Defendant argues that the appeal before this Court falls under both exceptions which would permit the interlocutory order to be appealed immediately.
    First, the trial court certified this order as being immediately appealable, however, Rule 54(b) “'does not authorizethe appeal of claims that have not been finally adjudicated.'” Anderson, 134 N.C. App. at 725, 518 S.E.2d at 788 (quoting Kirkman v. Wilson, 86 N.C. App. 561, 564, 358 S.E.2d 550, 552 (1987)). Plaintiff's sole claim was not finally adjudicated by the order and, thus, the order cannot yet be appealed.
    This court repeatedly has held that although a trial court may certify that “there is 'no just reason for delay' of the appeal,” that determination as to “'the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.'” Id. at 726, 518 S.E.2d at 788 (quoting Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249 (1984)); see also, McNeil v. Hicks, 111 N.C. App. 262, 264, 431 S.E.2d 868, 869 (1993); Henderson v. LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147 (1991). Thus, certification by the trial court for immediate appeal is ineffective when the requirement of Rule 54(b) that the claim in question has been finally adjudicated has not been met. Certification by the trial court in the present case is ineffective.
    Defendant argues in the alternative that immediate appeal of the interlocutory order is permissible because the appeal affects a substantial right, in that absent immediate appellate review, both parties face the prospect and expense of completing discovery and trial. Defendant argued in its motion for summary judgment and in its appeal that plaintiffs are barred from further recovery for the alleged negligence because of the accepted offer of judgment and satisfaction thereof related to the hospital visit in 2 July2000. The denial of defendant's motion for summary judgment only subjects the parties to the possibility of discovery and trial. This Court consistently has held that avoidance of trial is not a substantial right permitting immediate appeal of an interlocutory order. McIntyre v. McIntyre, __ N.C. App. __, __, 623 S.E.2d 828, 832 (2006); Anderson, 134 N.C. App. at 727, 518 S.E.2d at 789; Banner v. Hatcher, 124 N.C. App. 439, 442, 477 S.E.2d 249, 251 (1996); Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). Defendant is ineffective in arguing that immediate appeal of the interlocutory appeal is permissible to protect a substantial right to avoid the burden of discovery and trial. Accordingly, we dismiss this appeal as interlocutory.
    Appeal dismissed.
    Chief Judge MARTIN and Judge Levinson concur.
    Report per 30(e).

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