Nichols v. STATE EMP. CREDIT UNION

264 S.E.2d 793 (1980)

Mack Ervin NICHOLS v. STATE EMPLOYEES' CREDIT UNION.

No. 793DC821.

Court of Appeals of North Carolina.

April 15, 1980.

*794 Williamson, Herrin & Stokes by Mickey A. Herrin, Greenville, for plaintiff-appellant.

Lawrence S. Graham, Greenville, for defendant-appellee.

WELLS, Judge.

Although the parties have not raised the issue of the appealability of the trial court's order, it is nonetheless our duty to do so if we believe the appeal is premature. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). We believe that for the same reasons we have today held *795 that the granting of summary judgment as to less than all the parties in a multiple party suit is normally not appealable [see, Leasing Corp. v. Myers, ___ N.C.App. ___, 265 S.E.2d 240 (1980)], the present appeal may not be entertained. Plaintiff will not be denied a "substantial right" under G.S. 1-277 and G.S. 7A-27 by delaying his appeal until all matters in issue have been resolved at trial. Waters v. Personnel, Inc., supra; accord, Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). We believe that the "substantial right" exception to Rule 54(b) certification has been limited by the Court to those situations where the substance of an appealing party's claim or defense would be reduced, or where the appealing party would incur some other direct injury, if the appeal were not heard prior to entry of a final judgment disposing of all of the claims of all of the parties. We see no such substantial right of the plaintiff affected here.

As can be seen via the model we adopted in Leasing Corp. v. Myers, supra, ___ N.C. App. at ___, 265 S.E.2d at 243: (1) the right to appeal has not been conferred by statuteno substantial right of the defendant has been affected; (2) there has not been a judgment as to all of the claims; (3) the specific action of the trial court from which appeal has been taken is final in nature; and (4) the trial court has failed to certify, under Rule 54(b), that the judgment is final and that there is no just reason for delay. Accordingly, the present appeal is premature.

Appeal dismissed.

HEDRICK, J., concurs.

WEBB, J., dissenting.

WEBB, Judge, dissenting:

I dissent from the majority opinion. The problem of the appealability of interlocutory orders and judgments has been faced in the following cases. Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967); Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976); Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979); Whalehead Properties v. Coastland Corporation, 299 N.C. 270, 261 S.E.2d 899 (1980); Beck v. Assurance Co., 36 N.C. App. 218, 243 S.E.2d 414 (1978). The majority has concluded from these cases that the "`substantial right' exception to Rule 54(b) certification has been limited by the Court to those situations where the substance of an appealing party's claim or defense would be reduced, or where the appealing party would incur some other direct injury, if the appeal were not heard prior to entry of a final judgment disposing of all of the claims of all of the parties." The substance of the plaintiff's claim in the case sub judice has been reduced prior to final judgment. This should make it appealable.

The law as to the appealability of orders and judgments has been difficult to apply. It has been said that whether an interlocutory judgment affects a substantial right and will work injury to the appealing party, if not corrected before the appeal from final judgment, must be determined by "considering the particular facts of that case ...." See Whalehead Properties v. Coastland Corporation, supra, 299 N.C. at 277, 261 S.E.2d at 904. It is understandable that the majority would try to draw some rule from the decided cases as to which interlocutory judgments and orders are appealable. From a reading of the cases, I believe an interlocutory order or judgment which affects the merits of a case in such a way that the final judgment cannot stand if the order is wrong, affects a substantial right and will work injury to the appealing party if not corrected before an appeal from a final judgment. This seems to me to be the distinguishing feature in Nuckles, Oestreicher, Newton, Nasco and Beck. On the other hand, if the whole question of liability is determined adversely to defendant and the amount of damages is not determined, the defendant can wait until final judgment before appealing. This is the rule of Industries, Inc. In the case sub judice, if the partial summary judgment is *796 not corrected before appeal from the final judgment and the partial summary judgment is reversed on appeal, the final judgment from which the appeal is taken will not stand. I would hold that this makes the partial summary judgment appealable.