Appeal by defendants from an order entered 29 July 2005 by
Judge Anderson Cromer in Guilford County Superior Court. Heard in
the Court of Appeals 13 September 2006.
Kurt B. Aktug for plaintiff-appellee.
Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by
Phillip J. Anthony and Tobias S. Hampson, for defendant-
appellants.
BRYANT, Judge.
Russell A. Blendinger and the Greensboro Vending Company, Inc.
(defendants) appeal from an order entered 29 July 2005 denying
their motion to enforce a settlement agreement entered by
defendants with Larry Wayne Thomas (plaintiff). We dismiss this
appeal because it is from an interlocutory order which does not
affect a substantial right.
Facts and Procedural History
On 23 October 2003, plaintiff was injured in a motor vehicle
accident caused by defendant Russell A. Blendinger while driving a
vehicle owned by defendant Greensboro Vending Company, Inc. It isadmitted that Blendinger was acting in the course and scope of his
employment with Greensboro Vending Company and that the negligence
of Blendinger is imputable to Greensboro Vending Company.
On 10 November 2003, plaintiff entered into a contract with
the law firm of Egerton & Associates, P.A. to represent him in a
claim arising out of the automobile accident. Lawrence Egerton,
Jr., plaintiff's attorney, sent a “settlement brochure” listing
plaintiff's alleged damages to the defendants' insurance company on
28 January 2004. Settlement negotiations then ensued between
defendants' insurance company and plaintiff's attorney and an
agreement was reached to settle plaintiff's claim for $3,500.00.
In early March, 2004, defendants' insurance company sent
plaintiff's attorney a release for plaintiff to sign and a check
for $3,500.00. On 8 March 2004, plaintiff's attorney informed
defendants' insurance company that they were returning the
settlement funds and an unsigned release because plaintiff had
returned to treatment with a neurologist for intensive headaches.
Plaintiff filed a Complaint in this matter in Guilford County
Superior Court on 30 July 2004 seeking damages for bodily injury,
medical expenses, and economic losses. Defendants filed an Amended
Answer on 29 September 2004, and sought enforcement of the
settlement agreement. Defendants' motion to enforce the settlement
agreement was heard before the Honorable Anderson Cromer on 6 July
2005. The trial court entered an order on 29 July 2005, finding
there was no binding agreement to settle the case at hand, becausethe parties had not reached “a meeting of the minds.” Defendants
appeal.
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The dispositive issue before this Court is whether this appeal
is from an interlocutory order that does not affect a substantial
right of the defendants. Interlocutory orders and judgments are
those “made during the pendency of an action which do not dispose
of the case, but instead leave it for further action by the trial
court in order to settle and determine the entire controversy.”
Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)
(citation omitted). The trial court's order denied defendants'
motion to enforce the settlement agreement, and does not resolve
plaintiff's negligence claims. Thus, plaintiff's negligence claims
against defendants are still pending and the order defendants
appeal from is interlocutory.
“Generally, there is no right to immediate appeal from an
interlocutory order.”
Milton v. Thompson, 170 N.C. App. 176, 178,
611 S.E.2d 474, 476 (2005) (citing N.C. Gen. Stat. § 1A-1, Rule
54(b) (2005); and
Veazey v. City of Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950)). This Court has held that an interlocutory
order is immediately appealable if:
(1) the order is final as to some claims or
parties, and the trial court certifies
pursuant to N.C.G.S. § 1A-1, Rule 54(b) that
there is no just reason to delay the appeal,
or (2) the order deprives the appellant of a
substantial right that would be lost unless
immediately reviewed.
Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711,
713, 582 S.E.2d 321, 323 (2003) (citations and quotations omitted).
As there is no Rule 54(b) certification in the record before this
Court, defendants are entitled to pursue this appeal only if the
order deprived them of a substantial right that would be lost if we
dismissed their appeal.
Defendants argue the trial court's order deprives them of
three different substantial rights: (1) the State and Federal
Constitutional property right to enter into contracts; (2) the
right of a defendant not to be exposed to repetitious and
unnecessary lawsuits; and (3) the well-established principle that
settlements of controversies out of court are favored in North
Carolina in order to “secur[e] to every man the opportunity to
negotiate for the purchase of his peace without prejudice to his
rights.”
Penn Dixie Lines, Inc. v. Grannick, 238 N.C. 552, 555, 78
S.E.2d 410, 413 (1953). Defendants further cite to two opinions in
which both the North Carolina Supreme Court and this Court reached
the merits of an appeal involving the denial of the enforcement of
a settlement agreement.
Chappell v. Roth, 353 N.C. 690, 548 S.E.2d
499 (2001);
Lee v. Wake County, 165 N.C. App. 154, 598 S.E.2d 427,
disc. review denied, 359 N.C. 190, 607 S.E.2d 275 (2004). However,
the issue of whether an appeal from a denial of a motion to enforce
a settlement agreement is interlocutory was not addressed in either
of those appeals.
Defendants' arguments are similar to those rejected by this
Court in
Milton, where this Court held that an appeal from a denialto enforce a settlement agreement in a personal injury action does
not affect a substantial right.
Milton, 170 N.C. App. at 179, 611
S.E.2d at 477. “Where a panel of the Court of Appeals has decided
the same issue, albeit in a different case, a subsequent panel of
the same court is bound by that precedent, unless it has been
overturned by a higher court.”
In re Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989). Thus, we must hold that this appeal
is from an interlocutory order which does not affect a substantial
right; accordingly, this appeal is dismissed.
Dismissed.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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