PERSONNEL PROPERTIES, LLC,
v. Buncombe County
No. 05 CVS 570
COMBINED THERAPY SPECIALTIES
OF ASHEVILLE, INC., DANIEL
P. PAROBEK, AND HOWARD L.
The Sutton Firm, P.A., by April Burt Sutton, for plaintiff-
David R. Payne, P.A., by David R. Payne and Peter U. Kanipe, for defendants-appellants.
This cause of action arises out of two commercial lease
agreements entered into by and between Personnel Properties, LLC
(plaintiff) and Combined Therapy Specialties of Asheville, Inc.
(Combined Therapy), Daniel P. Parobek (Parobek), and Howard L.
Dortch, III (Dortch) (collectively, defendants). On 9 February
2005, plaintiff filed a lawsuit against defendants alleging that
defendants breached these lease agreements. On 26 January 2006, plaintiff filed a motion for partial
summary judgment on the issue of liability and submitted affidavits
in support of the motion. Defendants thereafter filed their own
motion for summary judgment on the issue of liability and likewise
submitted affidavits in support of their motion. By order entered
6 February 2006, the trial court granted defendants' motion for
summary judgment as to the liability of Parobek and Dortch on the
second lease agreement. In the same order the trial court granted
plaintiff's motion for summary judgment as to the liability of all
defendants on the first lease agreement and as to the liability of
Combined Therapy on the second lease agreement.
On appeal, defendants contend that the trial court erred by denying their motion for summary judgment and by granting partial summary judgment in favor of plaintiff. Plaintiff contends the appeal should be dismissed as interlocutory. We agree with plaintiff.
'A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.' Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (quoting Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993)). Further, the trial court's denial of a motion for summary judgment is an interlocutory order from which an appeal generally cannot immediately be taken. Lovelace v. City of Shelby, 153 N.C. App. 378, 381, 570 S.E.2d 136, 138, disc. review denied, 356 N.C. 437, 572 S.E.2d 785 (2002). There are, however, two means by which an interlocutory order may be immediately appealed: (1) the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) (2006); and (2) the order affects a substantial right of the appellant that would be lost without immediate review. McIntyre v. McIntyre, ___ N.C. App. ___, ___, 623 S.E.2d 828, 831 (2006) (citation omitted). Here, the trial court did not certify its order pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. As such, this interlocutory order is reviewable only if it affects a substantial right.
The substantial right test is satisfied when overlapping issues of fact between decided claims and those remaining create the possibility of inconsistent verdicts from separate trials. CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999). Where, as here, an order resolves the issue of liability and leaves only the issue of damages undetermined, this Court has held there is no danger of inconsistent verdicts, and no substantial right is affected. Id. Accordingly, we dismiss defendants' appeal as interlocutory.
Judges WYNN and GEER concur.
Report per Rule 30(e).
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