Opinion
No. COA15-704
04-05-2016
KATHY GAYLE ROBERTS, Plaintiff-Appellee, v. HILLARY PAGE THOMPSON and ALEXIS JACKSON THOMPSON, Defendants-Appellants.
Hoof Hughes Law, PLLC, by J. Bruce Hoof, for Plaintiff-Appellee. Brown, Crump, Vanore & Tierney, L.L.P., by Andrew A. Vanore, III, for Defendants-Appellants.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Durham County, No. 13 CVS 004811 Appeal by Defendants from orders entered 3 March and 16 March 2015 by Judge Orlando F. Hudson, Jr. in Superior Court, Durham County. Heard in the Court of Appeals 7 March 2016. Hoof Hughes Law, PLLC, by J. Bruce Hoof, for Plaintiff-Appellee. Brown, Crump, Vanore & Tierney, L.L.P., by Andrew A. Vanore, III, for Defendants-Appellants. McGEE, Chief Judge.
Hillary Page Thompson ("Hillary"), a Durham resident, was the owner of a rescue dog named Farley in April of 2012. Farley was known to be protective of toys in his possession. Alexis Jackson Thompson ("Alexis") (together with Hillary, "Defendants"), a resident of Chapel Hill, was Hillary's mother, and would take care of Farley on occasion. Kathy Gayle Roberts ("Plaintiff") was a friend and neighbor of Alexis. Plaintiff and Alexis also owned dogs, and often spent time at each other's houses, along with their respective dogs. Hillary and Farley would also join Plaintiff and Alexis for social engagements involving dogs.
Alexis had a gathering at her house in Chapel Hill on 18 April 2012, which was attended by Plaintiff, Hillary, and other friends. There were a total of seven people and five dogs at the 18 April 2012 gathering, and the dogs were running free in the yard and playing with one another. At some point during the gathering, Farley was sitting directly behind Plaintiff chewing on a Kong dog toy. Plaintiff apparently knew the dog toy was behind her and, without looking, reached behind her to retrieve the toy. Farley bit Plaintiff on her hand and wrist, causing injury requiring immediate medical attention and subsequent surgery.
Plaintiff filed the complaint in this action on 3 October 2013, alleging common law strict liability based upon Defendants' alleged knowledge that Farley was a dangerous animal with the propensity to bite people. Plaintiff further alleged strict liability based on violation of Chapel Hill Ordinances ("the ordinances") relating to the care and control of vicious or dangerous animals. Plaintiff alleged damages resulting from the bite "in an amount not less than $10,000.00." Plaintiff claimed that Hillary and Alexis should be held jointly and severally liable because Hillary was Farley's owner, and Alexis should be considered Farley's "custodian."
Defendants answered on 4 November 2013, denying liability and claiming the defense of contributory negligence. Plaintiff filed a motion to strike Defendants' defense of contributory negligence on 4 December 2013. Defendants moved for summary judgment on 12 September 2014, and Plaintiff moved for partial summary judgment on the issue of liability on 30 December 2014. These motions were heard on 13 January 2015, and the trial court made the following rulings by order entered 3 March 2015: (1) Plaintiff's motion for partial summary judgment on the issue of liability was granted; (2) Defendants' motion for summary judgment was denied; and (3) Plaintiff's motion to strike Defendants' contributory negligence defense was granted. Because the trial court decided the issue of liability by summary judgment, it further ruled: "The trial of this case will therefore be on the issue of damages only." The trial court also included the following in its 3 March 2015 order:
5. There is no just reason for delaying the entry of a final judgment in this case in favor of the Plaintiff Roberts against the Defendants Thompson and against each of them on the issue of liability; andDefendants filed a motion on 6 March 2015 to reconsider or amend the trial court's 3 March 2015 order. The trial court denied Defendants' motion by order entered 16 March 2015. Defendants appeal.
6. The Court's ruling allowing the Plaintiff Roberts' Motion for Partial Summary Judgment on the issue of liability affects a substantial right of the Defendants.
We do not address Defendants' arguments on appeal because Defendants' appeal is not properly before us and we dismiss it.
Because the issue of damages is yet to be resolved, the 3 March 2015 order is interlocutory. "[I]t is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." Holbert v. Holbert, ___ N.C. App. ___, ___, 762 S.E.2d 298, 303 (2014). Defendants contend that the 3 March 2015 order is immediately appealable pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. However, Rule 54(b) only applies to final judgments:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes.N.C. Gen. Stat. § 1A-1, Rule 54(b) (2015). Our Supreme Court, in Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), addressed a situation analogous to the one presented in this appeal:
The decree of the trial court in this case is properly denominated a partial summary judgment rendered on the issue of liability alone, the court determining that there
was a genuine issue as to the amount of damages. Such a judgment is authorized by Rule 56(c) of the Rules of Civil Procedure which provides, "[a] summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is genuine issue as to the amount of damages." Thus the rule authorizing such a judgment denominates it interlocutory. Since further action is required by the trial court in order to determine both of plaintiff's claims this judgment would be interlocutory as to both under our traditional rules were it not so defined in Rule 56. Defendant does not seriously contend that the judgment is other than interlocutory.
That the trial court declared it to be a final, declaratory judgment does not make it so. This is not an action for a declaratory judgment but a claim by plaintiff for damages. Even if we considered this a multiple claim lawsuit within the meaning of Rule 54(b) inasmuch as plaintiff has asserted two claims against defendant, the judgment in this case is not final as to either claim. Rule 54(b) does not purport to define a final judgment. It simply provides for (1) the entry of such a judgment as to fewer than all of the claims in a multiple claim or multiple party lawsuit and (2) a procedure whereby such final judgments on "one or more but fewer than all of the claims or parties" are immediately appealable. We have held that Rule 54(b) cannot limit an appellant's right to appeal when the decree was appealable under other statutory provisions, namely, G.S. 1-277 and G.S. 7A-27(d). Neither can a trial judge by denominating his decree a "final judgment" make it immediately appealable under Rule 54(b) if it is not such a judgment.
The decree, furthermore, is not appealable on the theory that it affects a substantial right of defendant and will work injury to it if not corrected before an appeal from the final judgment. If this partial summary judgment is in error defendant can preserve its right to complain of the error on appeal from the final judgment by a duly entered exception. Even if defendant is correct on its legal position, the most it will suffer from being denied an immediate
appeal is a trial on the issue of damages. In holding that a denial of defendant's motion for summary judgment is not appealable by the defendant inasmuch as it is an interlocutory order by which defendant is not deprived of any substantial right, we said in Waters v. Personnel, Inc., supra, 294 N.C. at 208, 240 S.E.2d at 344:
"Defendant's rights here are fully and adequately protected by an exception to the order which may then be assigned as error on appeal should final judgment in the case ultimately go against it. All defendant suffers by its inability to appeal Judge Long's order is the necessity of rehearing its motion. The avoidance of such a hearing is not a 'substantial right' entitling defendant to an immediate appeal. Neither, for that matter, is the avoidance of trial which defendant might have to undergo should its motion and plaintiff's motion for summary judgment (which is still pending) both be denied."
Id. at 490-92, 251 S.E.2d at 447-48 (citations omitted) (emphasis added); see also Holbert, ___ N.C. App.at ___, 762 S.E.2d at 303 ("any certification of an order that is not a final judgment as to a claim or party [is] ineffective"). Because the 3 March 2015 order left the issue of damages to be determined, it was not a final order for any of Plaintiff's claims. Because it was not a final order, Rule 54(b) certification could not be utilized to make the interlocutory order immediately appealable. Id.
Finally, defendant has referred us to no case nor has our research revealed one holding that a partial summary judgment entered for plaintiff on the issue of liability only leaving for further determination at trial the issue of damages is immediately appealable by defendant. The cases uniformly hold to the contrary.
Further, Defendants do not show that absent immediate appeal they will be deprived of some substantial right by arguing: "In the alternative, Defendants contend this Order is immediately appealable under Rule 54(b) because [the trial court's] Order deprives Defendants of the substantial right to challenge and defend liability on the merits, due to the interpretation of a town ordinance as creating strict liability." However, N.C. Gen. Stat. § 1-277(a), which is not argued by Defendants, is the statute allowing immediate appeal of interlocutory orders affecting some substantial right of a party. N.C. Gen. Stat. § 1-277(a) (2015) ("An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding[.]"). Defendants do not adequately argue how some substantial right of theirs would be affected absent immediate appeal. Defendants will have the opportunity to appeal the 3 March 2015 order following the determination of damages, and will then be afforded the "right to challenge and defend liability on the merits" should they prevail in that appeal. Id. Defendants make no argument that the 16 March 2015 order, denying their motion to reconsider or amend the 3 March 2015 order, is immediately appealable. We dismiss Defendants' appeal, and remand to the trial court for determination of the issue of damages.
DISMISSED.
Judges STROUD and ZACHARY concur.
Report per Rule 30(e).