Opinion
No. COA05-894
Filed 21 March 2006 This case not for publication
Appeal by defendants from an order denying their motion for summary judgment entered 14 February 2005 by Judge Dennis Winner in Henderson County Superior Court. Heard in the Court of Appeals 27 February 2006.
Timithy R. Cosgrove for plaintiff-appellee. Northup McConnell, P.L.L.C., by Isaac N. Northup, Jr., for defendant-appellants.
Henderson County No. 03 CVS 1853.
Plaintiff Jody Meredith Franklin Roberts, Sr. (Roberts) brought a medical malpractice action against defendants Jeffrey Coston, M.D., Joan Taylor, M.D., and Park Ridge Anesthesiology Services, P.A. (defendants collectively) under the theory of res ipsa loquitur. Defendants are specialists in the field of anesthesiology services and Roberts was under defendants' care during his neurological surgery on 17 November 2000.
Roberts alleges defendants were responsible for general endotracheal anesthesia just before and during his surgery. Roberts further alleges that immediately upon recovery from anesthesia, he experienced hoarseness in his voice and had extreme difficulty swallowing with secretions of mucous. Examinations by specialists revealed Roberts had suffered left true vocal chord paralysis and he was diagnosed with aspiration syndrome. Roberts alleges the injuries he sustained during his surgery would rarely have occurred in the absence of defendants' negligence and such negligence proximately caused his injuries.
On 15 November 2004, defendants moved for summary judgment, which motion was denied by order of the trial court entered 14 February 2005. Thereafter, the trial court certified the order for immediate review summarily stating it "affects a substantial right and there is no just reason for delay of the appeal." From the summary judgment order entered, defendants appeal.
Although the parties do not raise the issue, defendants have failed to include a statement of grounds for appellate review in violation of N.C.R. App. P. 28(b)(4). We must first consider, sua sponte, whether defendants' appeal is properly before this Court. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) ("if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties").
Here, the trial court denied defendants' motion for summary judgment. It is well-settled that an order denying a motion for summary judgment is interlocutory. Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 725, 518 S.E.2d 786, 787 (1999). Interlocutory orders ordinarily are not directly appealable. See Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). There are, however, two means by which an interlocutory order or judgment may be immediately appealed: (1) it is final as to some but not all of the claims and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b); or (2) it "deprives the appellant of a substantial right which would be lost absent immediate review." Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted).
Although the denial of a motion for summary judgment is not a final judgment, Anderson, 134 N.C. App. at 725, 518 S.E.2d at 788, the trial court certified this order as being immediately appealable. Rule 54(b), however, "does not authorize the appeal of claims that have not been finally adjudicated." Id. As such, the trial court's attempt at Rule 54(b) certification in this case is ineffective. See id. at 726, 518 S.E.2d at 788 ("[T]he trial court's determination that there is `no just reason for delay' of appeal . . . cannot bind the appellate courts because `ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court[.]'") (citations omitted).
This appeal, thus, is not properly before this Court unless a substantial right has been affected. Defendants have not argued the denial of their motion affects a substantial right and a review of the record does not reveal a substantial right has been affected that could not be corrected upon appeal from final judgment. See Allen v. Stone, 161 N.C. App. 519, 522, 588 S.E.2d 495, 497 (2003) ("[A]voidance of a trial, no matter how tedious or unnecessary, is not a substantial right entitling an appellant to immediate review.") (citation omitted). Accordingly, we dismiss this appeal as interlocutory. See First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 248, 507 S.E.2d 56, 61 (1998) (dismissing as interlocutory the appeals from the denial of parties' summary judgment motions where the record revealed no substantial right which "could not be corrected upon appeal from final judgment") (citations omitted).
Appeal dismissed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).