Schuch v. Hoke

346 S.E.2d 313 (1986)

Barbara Wall Barham SCHUCH v. William R. HOKE, Administrator of the Estate of Kellie Camelle Lloyd, Deceased.

No. 8610SC53.

Court of Appeals of North Carolina.

August 5, 1986.

*314 Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Sanford W. Thompson, IV, Raleigh, for plaintiff-appellee.

Walter L. Horton, Jr., Raleigh, for defendant-appellant.

WHICHARD, Judge.

Neither party has argued the threshold question of whether an appeal lies from the order. However, "[i]t is well established in this jurisdiction that 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 themselves." Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). On the authority of Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), we dismiss this appeal as premature.

In Industries, Inc. our Supreme Court held that an order granting plaintiff's motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, was an interlocutory order not subject to immediate appeal. The Court stated:

[D]efendant has referred us to no case nor has our research revealed one holding that a partial summary judgment entered for plaintiff on the issue of liability only leaving for further determination at trial the issue of damages is immediately appealable by defendant. The cases uniformly hold to the contrary.

Id. at 492, 251 S.E.2d at 448.

The defendant here is in precisely the same position as the defendant in Industries, Inc.. The effect of the partial summary judgment orders, which established the negligence of defendant-administrator's decedent and the absence of contributory negligence or assumption of risk on the part of plaintiff, was to fix liability and retain the cause for determination solely on the issue of damages. See Insurance Co. v. Dickens, 41 N.C.App. 184, 186, 254 S.E.2d 197, 198 (1979). Thus, as in Industries, Inc., "[e]ven 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., 296 N.C. at 491, 251 S.E.2d at 447.

The [defendant] here, as the defendant in Industries, Inc., can preserve the right to have appellate review of all trial court proceedings by duly entered exceptions on appeal from the final judgment. All reasons advanced by our Supreme Court in Industries, Inc. against permitting fragmentary, premature, and unnecessary appeals, apply with equal force in the present case.

Insurance Co., 41 N.C.App. at 186, 254 S.E.2d at 198.

In Industries, Inc., as here, the order contained a recital that "this is a final judgment and there is no just reason for delay." Industries, Inc., 296 N.C. at 488, 251 S.E.2d at 445. As the Supreme Court stated there, however, "[t]hat the trial court declared it to be a final ... judgment does not make it so." Id. at 491, 251 S.E.2d at 447. "[A] trial judge [cannot] by denominating his decree a `final judgment' make it immediately appealable under Rule 54(b) if it is not such a judgment." Id. See also Cook v. Tobacco Co., 47 N.C.App. 187, 266 S.E.2d 754 (1980).

*315 The order appealed from here, like that in Industries, Inc., is not a final judgment as to any claim or any party. The Rule 54(b) role of the trial court as "the `dispatcher' of cases to the appellate court," Leasing Corp. v. Myers, 46 N.C.App. 162, 165, 265 S.E.2d 240, 243, appeal dismissed, 301 N.C. 92 (1980), thus is not implicated. Industries, Inc., 296 N.C. at 491, 251 S.E.2d at 447.

Appeal dismissed.

WEBB and JOHNSON, JJ., concur.