Opinion
No. COA02-800
Filed 5 August 2003 This case not for publication
Appeal by defendant from order entered 19 February 2002 by Judge D. Jack Hooks, Jr., in Brunswick County Superior Court. Heard in the Court of Appeals 26 March 2003.
FAIRLEY, JESS, ISENBERG GREEN, by William F. Fairley, for plaintiff appellees. Fred D. Webb, Jr., for defendant appellant.
Brunswick County No. 00 CVS 1215.
Robert D. Moretz ("defendant") appeals from a judgment of the trial court granting partial summary judgment in favor of T. Hoyle Dosher, Sr., Hermine Dosher Hall, Albert Dosher, and Richard Dosher (referred to collectively as "plaintiffs"). Because we rule that this appeal is interlocutory and does not affect a substantial right, we dismiss the appeal.
This appeal arises out of a real property dispute between plaintiffs and defendant. The relevant procedural history of this case is as follows: On 31 July 2000, plaintiffs filed a complaint against defendant, to quiet title and alleging trespass and slander to title of property located in Southport, North Carolina. Plaintiffs' action sought to recover damages in an amount in excess of $10,000.00. In response, defendant filed an answer denying plaintiffs' claims and filed a counterclaim. Defendant's counterclaim sought a declaration that he was the owner of the contested property and asserted that plaintiffs' deed created a cloud on the title. Thus, defendant claimed that he was entitled to damages from plaintiffs in excess of $10,000.00.
On 15 October 2001, plaintiffs filed a motion for summary judgment. By order issued 13 February 2002, the trial court granted partial summary judgment in favor of plaintiffs by declaring plaintiffs the owners of the property in dispute and declaring defendant's deeds null and void. Further, the trial court dismissed defendant's counterclaim with prejudice. Plaintiffs' causes of action set forth in the complaint for damages were not decided by the trial court. From this order of partial summary judgment, defendant appeals.
The sole issue raised by defendant on appeal is whether the trial court erred in granting partial summary judgment to plaintiffs when there were genuine issues of material fact as to whether the property claimed by plaintiffs is the same property claimed by defendant. Before we address this issue, we must decide whether defendant's appeal is interlocutory and subject to dismissal. An appeal is interlocutory "if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). A final judgment disposes of the case as to all the parties, leaving nothing to be judicially determined between them in the trial court; however, an interlocutory order "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, 361-62, 57 S.E.2d 377, 381 (1950).
The grant of partial summary judgment did not resolve all the claims in this case and an appeal from that order is therefore interlocutory. It is well established that an interlocutory order is not immediately appealable, Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999); however, the right to appeal such an order is available through two avenues. Brown v. Brown, 77 N.C. App. 206, 207, 334 S.E.2d 506, 507 (1985), disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986). First, Rule 54(b) of our Rules of Civil Procedure allows a party to appeal "if there has been a final judgment as to all of the claims and parties, or if the specific action of the trial court from which appeal is taken is final and the trial judge expressly determines that there is no just reason for delaying the appeal." Id. at 207, 334 S.E.2d at 507-508. We note that, in the instant case, the trial court made no such certification. Therefore, defendant is limited to the second avenue of appeal, where "the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." N.C. Dept. of Transportation, 119 N.C. App. at 734, 460 S.E.2d at 334; see Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (noting that the appellant has the burden of establishing that a substantial right will be affected), see also N.C. Gen. Stat. §§ 1-277(a), 7A-27(d)(1) (2001) (a party may appeal an interlocutory order where the order affects a substantial right). The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party. See Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). The substantial right most often addressed by our courts is the right to avoid inconsistent verdicts created by separate trials on the same issues. Rudisail v. Allison, 108 N.C. App. 684, 686, 424 S.E.2d 696, 698, disc. review denied, 333 N.C. 575, 429 S.E.2d 572 (1993). The determination of whether a substantial right is affected should be strictly construed and viewed on a case-by-case basis. Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982); see also Buchanan v. Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509 (1982).
In the instant case, defendant's brief contains a brief statement to suggest that a substantial right exists in order to avoid an inconsistent verdict. Because this Court is not convinced that there is a risk of such verdicts, defendant's appeal is premature. The only claims left to be determined concern the entirely separate issues of trespass and slander to title. Therefore, at trial the court will only hear evidence of whether defendant engaged in tortious conduct requiring an award of damages. Thus, there is no possibility of inconsistent verdicts. Here, no substantial right would be lost without immediate review. See CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999). Moreover, we note that dismissing this interlocutory appeal does not prejudice defendant. Because defendant has preserved his objection to the trial court's order granting partial summary judgment in favor of plaintiffs, defendant preserves the issue and if necessary, appeal from the trial court's ultimate disposition of the entire controversy. See Turner v. Norfolk S. Corp., 137 N.C. App. 138, 143, 526 S.E.2d 666, 671 (2000).
Accordingly, because neither a final judgment was entered, nor any substantial right affected, we dismiss this appeal as interlocutory.
Dismissed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).