Opinion
No. 07-1221.
Filed April 1, 2008.
Durham County No. 03CVS477.
Appeal by defendant from order entered 16 May 2007 by Judge Orlando F. Hudson, Jr., in Durham County Superior Court. Heard in the Court of Appeals 31 March 2008.
Hairston Lane Brannon, PLLC, by James E. Hairston, Jr., for plaintiff-appellee.
Hoof Hughes, P.L.L.C., by J. Bruce Hoof, for defendant-appellant, Mount Zion Christian Church, Inc.
When defendant's interlocutory appeal does not affect a substantial right, it must be dismissed.
I. Factual and Procedural Background
Mount Zion Christian Church, Inc. ("Mount Zion") entered into a cleaning services contract with plaintiff in March of 2000, and terminated the contract in July of 2001. On 10 October 2001, plaintiff filed an action in Durham County Superior Court, 01 CVS 04728, naming as defendants Mount Zion Christian Church of Hillsborough, Inc. ("Mount Zion-Hillsborough"), and Mount Zion's pastor, Donald Fozard (Fozard), seeking to recover monies due under the contract. Defendants moved for summary judgment on the grounds that (1) Mount Zion-Hillsborough was not a party to the contract, and (2) Fozard was not individually liable for acts allegedly committed as an agent on behalf of Mount Zion. Plaintiff filed a voluntary dismissal of his complaint on 27 January 2003, pursuant to N.C. R. Civ. P. 41(a)(1).
Plaintiff refiled his complaint as 03 CVS 00477 on 27 January 2003, naming as defendants Mount Zion, Mount Zion-Hillsborough, and Fozard. Fozard filed a motion to dismiss under N.C.R. Civ. P. 12(b)(6). Both Mount Zion-Hillsborough and Fozard moved for summary judgment and sought an award of attorneys' fees pursuant to N.C. Gen. Stat. § 6-21.5 (2007), based on the lack of a justiciable issue of law or fact in plaintiff's claims against them.
Plaintiff filed a motion requesting that the court dismiss Mount Zion-Hillsborough as a party to the action based upon misjoinder under Rule 21 of the North Carolina Rules of Civil Procedure. On 11 October 2004, Judge Titus granted Fozard's motion for summary judgment, and dismissed plaintiff's claims against Fozard. On 10 November Judge Titus entered an order awarding attorneys' fees against plaintiff in favor of Fozard and Mount Zion-Hillsborough based upon a complete lack of a justiciable issue of law or fact under N.C. Gen. Stat. 6-21.5 in the amount of $5,000.00.
On 6 December 2004, Judge Titus entered an order captioned in both cases 01 CVS 04728 and 03 CVS 00477, withdrawing the 10 November order and entering a new order awarding attorneys' fees. The new order taxed $5,000.00 in attorneys' fees against plaintiff in case 01 CVS 04728 pursuant to N.C. Gen. Stat. 6-21.5. The order further stayed plaintiff's action in case 03 CVS 00477 until plaintiff paid the attorneys' fees and costs. On 10 January 2005 defendants moved to dismiss plaintiff's action pursuant to N.C. R. Civ. P. Rule 41(d) for failure to pay costs within 30 days. On 13 January 2005, Judge Hudson granted this motion and dismissed plaintiff's complaint, with prejudice. On 14 February 2005, plaintiff moved the court pursuant to Rule 60 of the Rules of Civil Procedure to reconsider its prior dismissal. On 16 May 2007, Judge Hudson granted plaintiff's motion, vacating his prior order. Mount Zion appeals.
II. Analysis — Interlocutory Appeal
Defendant contends that the trial court erred in granting plaintiff's motion for reconsideration. We disagree.
We must first address whether defendant's appeal is interlocutory. Mount Zion acknowledges in its brief that the order rescinding the dismissal of plaintiff's complaint is interlocutory, in that it "does not finally dispose of the case and requires further action by the trial court[.]" Yang v. Three Springs Inc., 142 N.C. App. 328, 330, 542 S.E.2d 666, 667 (2001) (citation omitted). A party has no right of appeal from an interlocutory order unless (1) the order is final as to one or more claims and is certified for immediate appeal pursuant to N.C.R. Civ. P. 54(b), or (2) the order will deprive the appellant of a substantial right absent an immediate appeal. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (citations omitted). The trial court did not make a certification under Rule 54(b). Therefore, Mount Zion must show that the order affects a substantial right, and that the right in question cannot be adequately protected by an appeal from the final judgment. Ward v. Wake County Bd. of Educ., 166 N.C. App. 726, 729-30, 603 S.E.2d 896, 899 (2004).
"[T]here is no general right of immediate appeal from an interlocutory order entered pursuant to Rule 60(b). Nor is there a general right of immediate appeal from an order setting aside a prior dismissal." Id. at 732, 603 S.E.2d at 901 (citations omitted). Although the reinstatement of plaintiff's action against Mount Zion raises the prospect of trial, our courts have consistently held "that avoidance of a trial, no matter how tedious or unnecessary, is not a substantial right entitling an appellant to immediate review." Allen v. Stone, 161 N.C. App. 519, 522, 588 S.E.2d 495, 497 (2003); accord Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982).
In asserting the denial of a substantial right, Mount Zion contends that the reinstatement of plaintiff's action after a lengthy delay "substantially, adversely affect[s its] ability to defend itself." However, any prejudice to its defense can be fully addressed on appeal from the final judgment. If Mount Zion shows on appeal that the trial court erred by rescinding its dismissal of plaintiff's complaint, any success plaintiff enjoys at trial will be nullified. Where "an appellant's rights may be fully and adequately protected by an exception to the order that could then be assigned as error on appeal after final judgment, there is no right to immediate appellate review[.]" Yang, 142 N.C. App. at 330, 542 S.E.2d at 667 (citing Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980)).
"`[I]f there is no right of appeal, it is the duty of an appellate court to dismiss the appeal on its own motion.'" Id. (quoting Stafford v. Stafford, 133 N.C. App. 163, 164, 515 S.E.2d 43, 44 (1999)).
DISMISSED.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).