Appeal by plaintiffs from an order entered 17 August 2006 by
Judge Anderson D. Cromer in Surry County Superior Court. Heard in
the Court of Appeals 24 May 2007.
J.E. Thornton, P.A., by Jack E. Thornton, Jr., for plaintiff-
appellants.
Gardner, Gardner & Campbell, PLLC, by John C. W. Gardner and
Hugh B. Campbell, III, for defendant-appellee.
BRYANT, Judge.
Walter B. Thomas, III, and Karen T. Denny (plaintiffs) appeal
from an order entered 17 August 2006 granting partial summary
judgment in favor of David Thomas (defendant). For the reasons
stated herein, we dismiss this appeal because it is from an
interlocutory order which does not affect a substantial right.
Facts and Procedural History
On 26 July 2005, plaintiffs filed this action seeking relief
from defendant for actions taken by defendant in his capacity as
executor of the estate of Ferne W. Thomas. Following the filing ofan Answer to the Complaint, defendant filed a Motion for Partial
Summary Judgment. This motion came on for hearing before the
Honorable Anderson D. Cromer, Judge Presiding, at the 24 July 2006
session of the Superior Court of Surry County, North Carolina.
After hearing arguments of counsel and the submission of written
memoranda by the parties, on 17 August 2006, the trial court
entered an order granting defendant's Motion for Partial Summary
Judgment and dismissed plaintiffs' claims regarding defendant's
sale of the decedent's home and subsequent payment of the federal
tax lien of plaintiff, Karen T. Denny.
Plaintiffs subsequently filed a motion to amend the order for
partial summary judgment, seeking certification from the trial
court under Rule 54(b) of the North Carolina Rules of Civil
Procedure allowing an appeal of the issues addressed by that order.
The trial court did not rule on plaintiffs' Rule 54(b) motion and
set the matter for trial. In response, plaintiffs filed a
voluntary dismissal without prejudice on 20 September 2006 as to
the remaining issues in the Complaint and gave notice of appeal on
25 September 2006.
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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 plaintiffs. 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). “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);
Veazey v. City of Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950)).
Here, the trial court's order granted summary judgment,
in favor of Defendant and against Plaintiff,
Karen T. Denny, with respect to the claims
asserted in paragraph 15(b) of the second
cause of action of the Plaintiff, Karen T.
Denny, with respect to the sale of the
decedent's personal residence and the payment
of a Federal lien outstanding against the
Plaintiff, Karen T. Denny, from the proceeds
of sale[.]
Plaintiffs' claims under their first cause of action and paragraph
15(a) of their second cause of action were not affected by the
trial court's order and remained to be resolved through further
litigation. Plaintiffs admit in their brief to this Court that the
trial court's order was not a final order disposing of the entire
case and “was interlocutory in nature[.]” However, plaintiffs
contend that, on 20 September 2006, when they filed their motion
voluntarily dismissing their remaining claims without prejudice,
they “render[ed] the [trial c]ourt's Order of August 16, 2006 a
final order within the meaning of Rule 54.”
Even though plaintiffs have taken a voluntary dismissal of
their remaining claims, this appeal is still from an interlocutory
order and must be dismissed pursuant to this Court's holding in
Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006). In
Hill,this Court was presented with an appeal from an order granting
summary judgment in favor of three of four defendants where the
plaintiffs subsequently entered into a consent order voluntarily
dismissing all claims against the fourth and last remaining
defendant.
Id. at 135, 627 S.E.2d at 664. The consent order
specifically stated:
9. This Court specifically orders, with the
consent of all parties, that if this case is
remanded for trial, all claims against Teresa
Henson West may be reinstated as the
Plaintiffs deem necessary and that the prior
dismissals without prejudice will not be pled
as a bar to said claims.
Id. This Court held that the plaintiffs' subsequent appeal of the
original order granting partial summary judgment was interlocutory:
[I]t is our belief that in enacting N.C. Gen.
Stat. § 1A-1, Rule 54, the General Assembly
never contemplated or intended that parties
would be allowed an appeal under the
circumstances in the case
sub judice. If we
were to entertain an appeal under these
circumstances, an appeal would be possible
from every interlocutory ruling which disposes
of one or more claims as to one or more
parties by taking a dismissal without
prejudice as to the other parties and claims
and later refiling the action. This was never
intended by the General Assembly and will not
be permitted.
Counsel in the case at bar are violating the
spirit of our Rules and are attempting to do
indirectly what they cannot do directly. This
appeal is dismissed for violation of N.C.R.
App. P. 28(b)(4) and for the reason that no
final determination of the plaintiffs' rights
as to Teresa Henson West has been made in the
trial court pursuant to N.C. Gen. Stat. §
1A-1, Rule 54.
Id. at 136, 627 S.E.2d at 664. As in
Hill, it is clear from the record before this Court that
plaintiffs' voluntary dismissal of their remaining claims without
prejudice is an attempt to circumvent the requirements of Rule
54(b). It is significant that the trial court did not rule on
plaintiffs' Rule 54(b) motion and therefore did not certify the
case for immediate appeal. Plaintiffs only filed their voluntary
dismissal after the trial court refused to rule on their Rule 54(b)
motion and instead set the matter for trial. We see no distinction
between plaintiffs' action voluntarily dismissing their remaining
claims without prejudice and the action of the plaintiffs in
Hill.
They attempt to do indirectly what they cannot do directly. “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 McCULLOUGH and STROUD concur.
Report per Rule 30(e).
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