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
.
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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