Green v. Duke Power Co.

274 S.E.2d 889 (1981)

Andrea D. GREEN, by her Guardian ad Litem, Kenneth R. Downs, and Henry Frank Green, Plaintiffs, v. DUKE POWER COMPANY, a North Carolina Corporation, Defendant and Third-Party Plaintiff, v. Henry Thomas EANES and Housing Authority of the City of Charlotte, North Carolina, Third-Party Defendants.

No. 8026SC637.

Court of Appeals of North Carolina.

February 17, 1981.

*890 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by William E. Poe and Irvin W. Hankins, III, Charlotte, for defendant and third-party plaintiff-appellant Duke Power Co.

Hedrick, Feerick, Eatman, Gardner & Kincheloe by Hatcher Kincheloe, Charlotte, for third-party defendant-appellee Eanes.

Golding, Crews, Meekins, Gordon & Gray by James P. Crews, Charlotte, for third-party defendant-appellee Housing Authority of the City of Charlotte, N. C.

WELLS, Judge.

Although Eanes' and Authority's motions to dismiss Duke's appeal as interlocutory were denied by another panel of judges of this Court, and although this question was not argued by either party before this Court, we believe that the opinion of our Supreme Court in Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980) requires us *891 to consider the question and to dismiss this appeal.

In Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240 (1980), appeal dismissed, 301 N.C. 92 (1980), we discussed at length the certification requirement of G.S. 1A-1, Rule 54(b). In that opinion, we recognized that the Rule 54(b) procedure establishes the trial court as the "dispatcher" of appeals to the appellate division. This vital role of the trial courts has been sanctioned and upheld by our Federal courts, interpreting the provisions of Federal Rule 54(b) from which our Rule was taken.[1]

Following our model in Leasing Corp., supra, at 170, 265 S.E.2d at 246, we must first determine whether the entry of summary judgment in favor of the third-party defendants Eanes and Authority affects a substantial right of third-party plaintiff Duke, so as to by-pass the Rule 54(b) procedure through application of the provisions of G.S. 1-277 or 7A-27. We hold that no such substantial right has been affected in this case because by preserving its exception to the granting of the summary judgments, Duke has preserved its right to pursue its claims against the third-party defendants in the event of judgment for the plaintiffs against Duke.

Duke asserts that it has a substantial right to have its claim for contribution against the third-party defendants tried before the same court and jury which tries plaintiffs' claims against it. In support of its argument, Duke cites Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976) and Heath v. Board of Commissioners, 292 N.C. 369, 233 S.E.2d 889 (1977). We believe both Oestreicher and Heath must be distinguished from the case sub judice. As Chief Justice Sharp succinctly pointed out in her concurrence in Oestreicher, that case involved but one claim for relief which presented issues for compensatory and punitive damages. In agreeing that plaintiff was entitled to the substantial right of having these two issues tried before the same court and jury, Justice Sharp said: "In such a situation, however, multiple claims are not involved. `[W]hen plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of Rule 54] does not apply.'" Oestreicher v. Stores, supra, at 145, 225 S.E.2d at 813-14.

Heath involved no interpretation of Rule 54(b). That Rule is not mentioned in the opinion. Heath dealt with the impact of the adoption of G.S. 1A-1, Rule 14 on the time at which a cause of action for indemnification arises. While we find no argument with the Court's statements about the purposes of Rule 14 found in Heath, such statements are mere dicta vis a vis the Rule 54(b) issue in this case.

Following the trial of plaintiffs' actions against Duke, if judgment is entered against it, it may then seek contribution from Eanes and the Authority as joint tort-feasors. G.S. 1B-1; Pearsall v. Power Co., 258 N.C. 639, 129 S.E.2d 217 (1963). The entry of summary judgment in favor of Eanes and the Authority in this case did not have the effect of destroying, impairing, or seriously imperiling Duke's right to seek such contribution. See Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). The avoidance of a separate trial on Duke's separate claims is not such a substantial right as would justify the by-passing of Rule 54(b) requirements which Duke seeks in this appeal. See Cook v. Tobacco Co., 47 N.C.App. 187, 266 S.E.2d 754 (1980).

*892 No substantial right being involved, and it being obvious that the judgments entered adjudicate fewer than all the claims or the rights and liabilities of all the parties, Rule 54(b), and the trial judge having refrained from and refused to certify this case for appeal, the appeal is interlocutory and must be dismissed. See Bailey v. Gooding, supra.

This appeal is

Dismissed.

The writ of supersedeas previously issued in this case is hereby

Dissolved.

ARNOLD and ROBERT M. MARTIN, JJ., concur.

[1] See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S. Ct. 895, 100 L. Ed. 1297 (1956), in which we find the following language:

To meet the demonstrated need for flexibility, the District Court is used as a "dispatcher." It is permitted to determine, in the first instance, the appropriate time when each "final decision" upon "one or more but less than all" of the claims in a multiple claims action is ready for appeal. This arrangement already has lent welcome certainty to the appellant procedure. Its "negative effect" has met with uniform approval.

351 U.S. at 435, 76 S. Ct. at 899-900, 100 L. Ed. at 1306. This subject was again before the United States Supreme Court in Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S. Ct. 1460, 64 L. Ed. 2d 1 (1980), where the Court reached a similar conclusion and quoted with approval pertinent language from Sears.