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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1497

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

WALTER B. THOMAS, III, and
KAREN T. DENNY,
        Plaintiffs,

v .                         Surry County
                            No. 05 CVS 907
DAVID THOMAS, as Executor
of The Estate of Ferne W.
Thomas, and Individually,
        Defendant.

    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.
_________________________

    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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