Opinion
No. COA12–77.
2012-08-7
GRANCRETE, INC., Plaintiff, v. SSA COOPER, LLC, Defendant.
Butler Pappas Weihmuller Katz Craig LLP, by Jay M. Goldstein, for Plaintiff–Appellant. Williams Mullen, by Daniel Lee Brawley and Edward James Coyne, III, for Defendant–Appellee.
Appeal by Plaintiff from order entered 25 April 2011 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 9 May 2012. Butler Pappas Weihmuller Katz Craig LLP, by Jay M. Goldstein, for Plaintiff–Appellant. Williams Mullen, by Daniel Lee Brawley and Edward James Coyne, III, for Defendant–Appellee.
BEASLEY, Judge.
Grancrete Inc. (Plaintiff) appeals the trial court's grant of summary judgment in favor of SSA Cooper, LLC (Defendant). For the following reasons, we dismiss.
Plaintiff is in the business of manufacturing and selling a concrete substance. In 2005, Plaintiff decided to build a production facility at the North Carolina State Port Authority (NCSPA) in Morehead City, North Carolina. In 2007, Plaintiff contacted Defendant, a stevedoring company with offices at the NCSPA, to discuss whether Defendant could provide laborers for Plaintiff's production facility. In December 2007, the parties entered into an agreement whereby Defendant would provide laborers to work at Plaintiff's Morehead production facility.
On 11 May 2008, Eric Wade (Wade), a laborer provided pursuant to the parties' agreement, was operating a forklift in Plaintiff's production facility. Wade, while operating the forklift, drove into a vertical support beam causing a portion of the roof to collapse.
On 3 August 2009, Plaintiff commenced a civil action against Defendant alleging breach of contract and negligence. Defendant served its answer and moved for summary judgment. Plaintiff moved for partial summary judgment. On 18 April 2011, the trial court heard arguments on the motions. The trial court granted Defendant's summary judgment motion and denied Plaintiff's motion for partial summary judgment by order entered 25 April 2011. Plaintiff filed timely notice of appeal.
First, we address Plaintiff's contention that this appeal is interlocutory. “An interlocutory order is one made during the pendency of an action, which 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, 362, 57 S.E.2d 377, 381 (1950). “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).
Plaintiff's complaint only alleges claims against Defendant. These claims are for (1) breach of contract; and (2) negligence in failing to send properly trained employees, failing to properly screen employees sent to work for plaintiff, and negligence based on respondeat superior. The trial court held that “[t]here is a genuine issue as to material facts as to Grancrete's claim based on respondeat superior and on Cooper's borrowed servant defense, and neither party is entitled to judgment as a matter of law on that claim or defense.”
The order of the trial court does not constitute a final judgment upon all issues and parties within the intent of N.C. Gen.Stat. § 7A–27(b) (2011), and is interlocutory. In order to appeal an interlocutory order, an appellant must demonstrate that the appeal affects a substantial right. N.C. Gen.Stat. §§ 1–277 and 7A–27(d) (2011). See also Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009).
Plaintiff argues that there “are overlapping factual issues between” the claims dismissed and the claim that was not dismissed. This is incorrect. The negligence claims that were dismissed were based upon the alleged direct negligence of defendant, whereas the remaining claim is based upon the negligence of Defendant's employee, which Plaintiff seeks to impute to Defendant under the doctrine of respondeat superior. These are different theories of liability, which implicate different factual issues. Plaintiff has failed to demonstrate that a substantial right is affected. We hold that Plaintiff's appeal is a non-appealable interlocutory order; therefore, Plaintiff's appeal is dismissed.
Dismissed. Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).