Opinion
No. 07-1172.
Filed April 1, 2008.
Lincoln County No. 06CVS1484.
Appeal by Plaintiff from order entered 19 July 2007 by Judge Edgar B. Gregory in Lincoln County Superior Court. Heard in the Court of Appeals 6 March 2008.
Cloud, Navarro Williams, PLLC, by Vernon E. Cloud Jr. and Michael E. Navarro, for Plaintiff-Appellant. Hedrick, Gardner, Kincheloe Garofalo, L.L.P., by Mel J. Garofalo and Sarah Reamer, for Defendant-Appellee.
Jeannine Covington (Plaintiff) filed this action seeking recovery from Defendants Medlin Towing and Garage Service, Inc. (Defendant Medlin), and Triad Financial Corporation (Defendant Triad), for assault and battery, breach of the peace, intentional infliction of emotional distress, and trespass to chattel. Plaintiff appeals from an order entered 19 July 2007 granting Defendant Triad's N.C. Gen. Stat. § 1A-1, Rule 56, motion for summary judgment. On 19 December 2007, Defendant Triad filed a motion to dismiss Plaintiff's appeal to this Court, alleging that Plaintiff violated the North Carolina Rules of Appellate Procedure. We conclude that this appeal is interlocutory. Therefore, we dismiss Plaintiff's appeal.
Plaintiff alleged in her complaint that she purchased a 2000 Ford Explorer from Hendrick Used Cars in the Spring of 2002. Plaintiff financed the vehicle and made monthly payments of $526.00. In February 2006, Plaintiff was in arrears of payment by two months. On 16 February 2006, while at home alone, Plaintiff heard noises outside; she walked out to discover two men in her driveway with a tow truck taking her Explorer. The men did not identify themselves, but simply stated that "they were there for the car." Plaintiff told the men to leave her property, and she left her porch and walked toward the Ford Explorer. One of the men, William Wood (Wood), informed Plaintiff that he was required to take the Explorer, and he "grabbed her by the arm and pulled her out of the way." When she still refused to move, Wood "grabbed Plaintiff around the waist, picked her up and moved her out of the way."
Plaintiff then asked if she could retrieve personal items from the car; she attempted to gather the items, and the second man, Travis Denton (Denton), "put the tow truck in motion and drove off." Plaintiff's "arm was caught in the [Explorer] and she was dragged approximately fifty (50) feet along her driveway and the public street." Plaintiff screamed for Denton to stop the vehicle, but she was "ignored." Neither Denton nor Wood attempted to check on Plaintiff's well-being, but rather, "left [her] in the street." Plaintiff suffered "a broken finger, two deep lacerations to her head, extensive and deep lacerations to her middle shoulder area, her left hand, right hand, right foot, right knee, right ankle and right shoulder." Plaintiff also "had a screw from the street imbedded in her foot[,] and it appeared that the vehicle had run over Plaintiff's legs and stomach."
Plaintiff brought claims for relief for assault and battery, breach of the peace, intentional infliction of emotional distress, and trespass to chattel against Defendant Medlin, alleging that Defendant's employees, Travis Denton and William Wood, committed the foregoing tortious conduct. Plaintiff also brought claims for relief against Defendant Triad, alleging that the conduct of the employees of Defendant Medlin was imputable to Defendant Triad "under the doctrine of respondeat superior."
On 6 June 2007, Defendant Triad filed a motion for summary judgment, stating that "[Defendant Medlin] . . . was engaged by Defendant Triad as an independent contractor to repossess Plaintiff's automobile, as shown by the pleadings[.]" Therefore, Defendant Triad contended that it was insulated from liability. On 19 July 2007, the trial court granted summary judgment in favor of Defendant Triad and dismissed Plaintiff's action against Defendant Triad with prejudice. The record does not reflect any disposition with regard to Plaintiff's action against Defendant Medlin. From this order, Plaintiff appeals.
Interlocutory Appeal
"An order is not final, and therefore interlocutory, if it fails to determine the entire controversy between all the parties." Plummer v. Kearney, 108 N.C. App. 310, 312, 423 S.E.2d 526, 528 (1992) (citing Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)). "[I]nterlocutory orders are generally not appealable." Plummer, 108 N.C. App. at 312, 423 S.E.2d at 529 (citing Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982)). "Two avenues do exist, however, whereby an interlocutory order may be immediately appealed." Plummer, 108 N.C. App. at 313, 423 S.E.2d at 529 (citing Baker v. Rushing, 104 N.C. App. 240, 245, 409 S.E.2d 108, 111 (1991)). "First, the order may be certified by the trial court as immediately appealable pursuant to N.C.G.S. § 1A-1, Rule 54(b) [(2007)]. . . . Second, an interlocutory order may be appealed pursuant to N.C.G.S. § 7A-27(d) or N.C.G.S. § 1-277 [(2007)]." Plummer, 108 N.C. App. at 313, 423 S.E.2d at 529. "The most common reason for allowing immediate appeal of an interlocutory order under these statutes is the prejudice of a substantial right." Id. (citing Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 24, 376 S.E.2d 488, 491 (1989)).
A "substantial right" is one "`affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right.'" Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quoting Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118, 130, 225S.E.2d 797, 805 (1976)). "Our Supreme Court has held that the possibility of undergoing two trials may affect a substantial right where the same issues are present in both trials, thereby creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issues." Ussery v. Taylor, 156 N.C. App. 684, 685, 577 S.E.2d 159, 160 (2003). Whether a substantial right is affected is determined on a case-by-case basis, and should be strictly construed. Buchanan v. Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509 (1982).
"`Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves.'" Metcalf v. Palmer, 46 N.C. App. 622, 625, 265 S.E.2d 484, 485 (1980) (quoting State v. School, 299 N.C. 351, 360, 261 S.E.2d 908, 914 (1980)).
In the instant case, the parties do not raise the question of whether Plaintiff's appeal is interlocutory; nonetheless, this Court addresses Plaintiff's right to appeal. The dismissal of Defendant Triad upon its Rule 56 motion operates as a final judgment as to the cause of action against it, but there is no certification in the dismissal order as to delay as required by Rule 54(b); thus, there is no right of appeal under Rule 54(b). Furthermore, there is no possibility that "a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issues." Ussery, 156N.C. App. at 685, 577 S.E.2d at 160. In a proceeding against Defendant Medlin alone, a jury could either find Defendant Medlin liable or not liable for Plaintiff's claims of assault and battery, breach of the peace, intentional infliction of emotional distress, and trespass to chattel. If, in an appeal of that verdict, Plaintiff renews her appeal of the trial court's order allowing Defendant Triad's Rule 56 motion, and our Court finds that the order was error, then a second trial would be required as to the claims against Defendant Triad. However, there is no possibility, based on the facts alleged in Plaintiff's complaint, that in a second trial, a jury could determine that Defendant Triad was liable under any cause of action for which Defendant Medlin was not liable. This is because every claim for relief which Plaintiff alleges against Defendant Triad is based on a theory of respondeat superior, directly resulting from the "wrongful actions of Defendant [Medlin's] employees[.]" Plaintiff alleges that Defendant Triad is liable for damages because "Defendent [Medlin] was acting within the scope of [Defendant Triad's] apparent authority as an independent contractor of Defendant [Triad]." We conclude there is no possibility for inconsistent verdicts.
The rule against interlocutory appeals promotes judicial "economy by avoiding fragmentary, premature and unnecessary appeals and permits the trial court to fully and finally adjudicate all the claims among the parties before the case is presented to the appellate court." Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 201, 464 S.E.2d 720, 722-23 (1995).Given the interlocutory nature of this case, we dismiss Plaintiff's appeal.
Appellate Rules Violations
We have also considered Defendant Triad's motion to dismiss Plaintiff's appeal to this Court, alleging that Plaintiff violated the North Carolina Rules of Appellate Procedure. We conclude that in light of our determination that this appeal should be dismissed as interlocutory we need not decide this issue.
Dismissed
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).