Opinion
No. 07-529.
Filed January 15, 2008.
Lenoir County No. 05 CVS 502.
Appeal by defendants from an order entered 20 September 2006 by Judge Kenneth F. Crow in Lenoir County Superior Court. Heard in the Court of Appeals 27 November 2007.
Beaver Holt Sternlicht Courie, P.A., by H. Gerald Beaver and Hal W. Broadfoot, Jr., for plaintiff-appellees.
Patterson, Dilthey, Clay Bryson, L.L.P., by Mary M. Webb, Lori P. Jones and Tobias S. Hampton, for defendant-appellants City of Kinston, County of Lenoir, Thurman Pate, and Kinston/Lenoir County Recreation Commission.
The City of Kinston, the County of Lenoir, Thurman Pate (Pate) and Kinston/Lenoir County Recreation Commission (collectively, defendants) appeal from an order entered 20 September 2006 denying their motion for summary judgment. We dismiss defendants' appeal as interlocutory.
Facts and Procedural History
Nathan Michael Richard Royal (minor plaintiff) was injured at a baseball tournament held at South Lenoir High School on 28 April 2002. The minor plaintiff, through his guardian ad litem, and through his parents Michael Royal and Tina Royal (collectively plaintiffs), filed suit against Kinston/Lenoir County Recreation Commission; Thurman Pate, an employee of the Recreation Commission, individually and in his official capacity; the Lenoir County Board of Education (the Board); Jimmy Smith (Smith), an employee of the Board, individually and in his official capacity; Lenoir County; City of Kinston; and the Amateur Athletic Union of the United States, Inc. (AAU). Plaintiffs asserted negligence claims against each Defendant.
A complete recitation of the facts may be found in Royal v. Pate, ___ N.C. App. ___, 643 S.E.2d 677 (2007)(unpublished).
On 7 November 2005, a Minor Settlement Judgment was approved by the trial court adopting a settlement agreement between plaintiffs and defendants AAU, Thurman Pate in his individual capacity and to the extent he allegedly worked on behalf of AAU, and Jimmy Smith, in his individual capacity and to the extent he allegedly worked on behalf of AAU (collectively, "the settling defendants"). The judgment provided that the settling defendants would pay $240,000.00 to the minor plaintiff as "satisfaction of all claims." The judgment also provided: "[T]his Judgment is intended to and does operate as a final judgment and not merely as a release under N.C. Gen. Stat. § 1B-3(e) and N.C. Gen. Stat. § 1B-4[.]"
On 21 November 2005, the trial court dismissed plaintiffs' claims against defendants Lenoir County Board of Education and Jimmy Smith, in his official capacity, for lack of personal jurisdiction. The trial court's order was affirmed by this Court in an unpublished opinion on 1 May 2007 leaving Thurman Pate, in his capacity as a Kinston/Lenoir County Recreation Commission employee, the City of Kinston, the County of Lenoir, and the Kinston/Lenoir County Recreation Commission as the remaining defendants in this action. The remaining defendants filed a Motion for Summary Judgment dated 18 May 2006 on the sole ground that the release of defendant Pate in the settlement agreement in his individual capacity acted as "a final adjudication as to the derivative liability of his alleged employer(s) Defendants City of Kinston, County of Lenoir, and Kinston/Lenoir County Recreation Commission." The trial court denied the motion in an order entered 20 September 2006. Defendants appeal.
Id.
As an initial matter, plaintiffs have filed with this Court a Motion to Dismiss Defendants' Appeal as Interlocutory. For the reasons given below, we allow plaintiffs' motion to dismiss defendants' appeal. An interlocutory order is one that "does not dispose fully of a case, but rather requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy." Foster v. Crandell, ___ N.C. App. ___, ___, 638 S.E.2d 526, 532 (2007), review denied, 361 N.C. 567, 650 S.E.2d 602 (2007). An interlocutory order is immediately appealable "if (1) the trial court certified the order for immediate review under North Carolina Rule of Civil Procedure 54(b), or (2) the order affects a substantial right that would be lost without immediate review." Id. "In either instance, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]" Country Club of Johnston County, Inc. v. U.S. Fidelity and Gaur. Co., 135 N.C. App. 159, 162, 519 S.E.2d 540, 543 (1999) (internal quotations omitted).
Defendants concede that their appeal is interlocutory. Defendants, however, argue their motion for summary judgment was based on the defense of res judicata and denial of their motion affects a substantial right. Defendants' defense of res judicata rests on their contention that the Minor Settlement Judgment was "intended to . . . operate as a final judgment" releasing defendant Pate in his individual capacity, and thereby also releasing the City, County and Commission from liability.
"As a general rule, a moving party may not appeal the denial of a motion for summary judgment because ordinarily such an order does not affect a substantial right." Bockweg v. Anderson, 333 N.C. 486, 490, 428 S.E.2d 157, 160 (1993) (internal quotation omitted). However, "the denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right," Williams v. City of Jacksonville Police Dep't., 165 N.C. App. 587, 589, 599 S.E.2d 422, 426 (2004) (citation omitted), but mere "avoidance of trial is not a substantial right entitling a party to immediate appellate review." Country Club, 135 N.C. App. at 163, 519 S.E.2d at 544 (quotations omitted). To demonstrate that a substantial right will be affected, defendants "must show not only that one claim has been finally determined, and others remain which have not yet been determined, but that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists." Id. at 163-64, 519 S.E.2d at 544 (citations and quotations omitted).
In Foster, this Court addressed an issue similar to the one in the case sub judice when the defendants appealed a denial of their motion for judgment on the pleadings. ___ N.C. App. at ___, 638 S.E.2d at 532. The defendants' claim of a substantial right in Foster was based on their argument that a prior voluntary dismissal with prejudice gave rise to the defense of res judicata. Id. at ___, 638 S.E.2d at 533. This Court stated it was bound by its decisions in Allen v. Stone, 161 N.C. App. 519, 588 S.E.2d 495 (2003) (holding an appeal from the denial of the defendant's motion to dismiss the claims the plaintiff voluntarily dismissed twice was interlocutory), and Robinson v. Gardner, 167 N.C. App. 763, 606 S.E.2d 449, disc. review denied, 359 N.C. 322, 611 S.E.2d 417 (2005) (relying on Allen, dismissed as interlocutory the defendants' appeal from an order denying their motion to dismiss) and dismissed the defendants' appeal as interlocutory. Foster, ___ N.C. App. at ___, 638 S.E.2d at 534. This Court held there was no possibility of an inconsistent verdict "[b]ecause defendants rel[ied] solely on a settlement agreement with an accompanying dismissal" as the basis for their argument of a substantial right. Id.
As in Foster, defendants in the case sub judice base their claim of a substantial right solely on the Minor Settlement Judgment and the accompanying dismissal of defendant Pate in his individual capacity. Defendants' appeal does not involve possible inconsistent jury verdicts or even an inconsistent decision on the merits. Defendants have not met their burden to establish that a substantial right will be affected. We therefore allow plaintiffs' motion to dismiss defendants' appeal.
Dismissed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).