Johnston v. Royal Indemnity Company

421 S.E.2d 170 (1992)

107 N.C. App. 624

Hugh W. JOHNSTON and Audrey S. Johnston, Plaintiffs, v. ROYAL INDEMNITY COMPANY, Defendant.

No. 9127SC809.

Court of Appeals of North Carolina.

October 6, 1992.

*171 Don H. Bumgardner and William K. Goldfarb, Gastonia, for plaintiffs, appellees.

Dean & Gibson by Rodney Dean, and Michael G. Gibson, Charlotte, for defendant, appellant.

HEDRICK, Chief Judge.

Defendant assigns as error the ruling by the trial judge that the insurance policy issued by defendant to plaintiff provided coverage for the damage suffered to the building located in Gastonia, North Carolina as the result of a severe rain storm. We do not, however, address that issue as we find that this appeal is not taken from a final judgment and must therefore be dismissed.

Plaintiffs' complaint sets forth a claim for a breach of contract and requests that the trial court enter judgment against defendant for the damages resulting from this breach. A judgment which determines only that there has in fact been a breach by defendant and leaves unresolved the issue of plaintiffs' damage is clearly an interlocutory order. G.S. § 1-277; G.S. § 7A-27; Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Bacon v. Leatherwood, 52 N.C.App. 587, 279 S.E.2d 86 (1981). While G.S. § 1-277 and § 7A-27 allow appeals of interlocutory orders which "affect a substantial right" of the party seeking to appeal, the Supreme Court has held that an order determining only the issue of liability and leaving unresolved other issues such as that of damages cannot be held to "affect a substantial right" as:

[i]f ... [such a] partial ... 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.

Industries, Inc. v. Insurance Co., 296 N.C. at 491, 251 S.E.2d at 447.

Defendant's appeal is dismissed.

Dismissed.

LEWIS and WYNN, JJ., concur.