An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1572


Filed: 18 July 2006


     v .                                 Harnett County
                                        No. 04 CVS 1436

    Appeal by plaintiff from judgments entered 20 and 27 May 2003 by Judge Gregory A. Weeks in Harnett County Superior Court. Heard in the Court of Appeals 8 June 2006.

    The Law Office of Jerry D. Parker, Jr., by Jerry D. Parker, Jr., and Robert A. Frey, for plaintiff appellant.

    Brown, Crump, Vanore & Tierney, L.L.P., by Derek M. Crump, for Don G. Wellons Properties, Inc., defendant appellee.

    McCULLOUGH, Judge.

    Plaintiff Linda G. Asher appeals from summary judgment entered in favor of defendant Don G. Wellons Properties, Inc. We conclude that her appeal must be dismissed as interlocutory.

    On 13 November 2001, Asher was injured in an automobile accident while in the course of her employment for defendant John H. Wellons Foundation Management Service, Inc. The driver of the vehicle was another employee of John H. Wellons Foundation Management Service , Richard Whittaker. Asher and Whittakerultimately received workers' compensation on behalf of John H. Wellons Foundation Management Service for injuries they sustained in the automobile accident.
    Asher thereafter filed a complaint against Richard Whittaker, John H. Wellons Foundation Management Services , Don G. Wellons, Don G. Wellons Properties, Inc., and Wellons Foundation Management Services. Asher's complaint alleged that Whittaker was liable for his careless operation of the vehicle in which Asher was riding when she was injured and that the remaining defendants were liable on a theory of respondeat superior.
    On motions for summary judgment filed by defendants, the trial court granted summary judgment in favor of John H. Wellons Foundation Management Services , Don G. Wellons, Don G. Wellons Properties, Inc., and Wellons Foundation Management Services. The trial court denied Whittaker's motion for summary judgment.
    Asher filed an appeal from the trial court's orders granting summary judgment in favor of John H. Wellons Foundation Management Services and Don G. Wellons Properties, Inc. Asher subsequently withdrew her appeal as to the order granting summary judgment in favor of John H. Wellons Foundation Management Services . Therefore, her appeal concerns only whether the trial court erred by granting summary judgment in favor of Don G. Wellons Properties, Inc .
Legal Discussion
    An order "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 "disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court[,]" while an interlocutory order "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).
    In general, there is no right to appeal from an interlocutory order. N.C. Gen. Stat. § 1A-1, Rule 54(b); Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). There are two significant exceptions to this rule. First, an interlocutory order is immediately appealable "when the trial court enters '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." Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253 (quoting N.C.R. Civ. P. 54(b)). Second, an interlocutory order may be immediately appealed if "the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." Southern Uniform Rentals v. Iowa Nat'l Mutual Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988). Whether an interlocutory appeal affects a substantial right is determined on a case-by-case basis. McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 50, 542 S.E.2d 227, 231, appealdismissed, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). This Court has previously held that:
        A substantial right is "one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." The right to immediate appeal is "reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed.” Our courts have generally taken a restrictive view of the substantial right exception. The burden is on the appealing party to establish that a substantial right will be affected.

Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted) "When an appeal is interlocutory, the statement [of the grounds for review in an appellant's brief] must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4) (2006).
    In the present case, Asher admits that the trial court's order is interlocutory, but insists that a substantial right is involved, because if her appeal is not addressed, she may be subjected to two separate trials on the same issue: whether Whittaker was employed by Don G. Wellons Properties and will run the risk of inconsistent verdicts in those trials. As Asher properly notes, this Court has previously held that a substantial right is affected when “'(1) the same factual issues would be present in [two different] trials [of a plaintiff's action] and (2) the possibility of inconsistent verdicts on those issues exists.'” In re Estate of Redding v. Welborn, 170 N.C. App. 324, 328, 612 S.E.2d 664, 668 (2005)(citation omitted). However, this Court has further held that no substantial right exists where respondeat superior is the only theory of liability against an employer in favor of whom summary judgment has been entered:
            A finding of liability against defendant . . . employer, is only possible if [the employee] is found liable, and the injuries arose out of and in the course of his employment. In other words, [the employer's] liability is derivative of [the employee's] liability, and the primary claim against the [employee] must first be determined before any claim against [the employer] is possible. Only if the court determines that plaintiffs may recover from the [employee] can their right to recover from [the employer] be affected by the summary judgment.

            If plaintiffs do not recover against [the employee], they cannot seek to recover against [the employer] under a respondeat superior theory, and an appeal of summary judgment would be moot. Moreover, if summary judgment for [the employer] is in error, plaintiffs can preserve their right to complain of the error by a duly entered exception, and may appeal after a successful judgment on the primary claims against [the employee.]

Long v. Giles, 123 N.C. App. 150, 152, 472 S.E.2d 374, 375 (1996).
    In the instant case, we discern no possibility of separate trials on the same issues or of inconsistent verdicts. Given that summary judgment has been granted in favor of all defendants with the exception of Whittaker, the trial on plaintiff's complaint will involve only the issue of Whittaker's liability. If Asher's suit against Whittaker is unsuccessful, she cannot seek to recover against Don G. Wellons Properties on a theory of respondeat superior. If Asher's case against Whittaker prevails, she may thenappeal the trial court's grant of summary judgment in favor of Don G. Wellons Properties, and, if successful, she may have the case remanded for a determination as to whether Whittaker was an employee of Don G. Wellons Properties such that the company is vicariously liable.
    Dismissed as interlocutory.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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