Harris v. DePencier

WELLS, Judge. The threshold question we must consider is whether an immediate appeal lies from Judge Lane’s order. See, Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E. 2d 431, 433 (1980). Judge Lane’s order did not adjudicate all the claims or the rights and liabilities of all the parties joined in plaintiff’s action. It finally adjudicated only the rights and liabilities of two of the parties, the two corporate defendants. Under G.S. 1A-1, Rule 54 of the Rules of Civil Procedure, such a final determination of the rights and liabilities of one or more but less than all of the parties in a multiple party action, is immediately appealable only if the trial judge specifies in the order that “there is no just reason for delay.” Arnold v. Howard, 24 N.C. App. 255, 210 S.E. 2d 492 (1974); see [163] also, Pasour v. Pierce, 46 N.C. App. 636, 265 S.E. 2d 652 (1980); Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240, appeal dismissed, 301 N.C. 92, — S.E. 2d — (1980). Judge Lane did not, however, certify this order for appeal pursuant to Rule 54(b) by including the finding of no just reason for delay. Actions by the trial court, if not final or if final but not properly certified by the trial judge pursuant to Rule 54(b), are nonetheless immediately appealable if the denial of an immediate appeal would affect a substantial right and work an injury to the appellant. G.S. 1-277 (Cum. supp. 1979); Bailey v. Gooding, supra; Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976); see also, Veazey v. Durham, 231 N.C. 354, 57 S.E. 2d 377 (1950). In the case sub judice, if denied an immediate appeal plaintiff can preserve his right to judicial review of Judge Lane’s order by preserving his exception to the order granting the motion to dismiss. Upon appropriate exception, such orders or judgments are reviewable on an appeal from the final judgment adjudicating all claims, rights and liabilities in the cause. Bailey v. Gooding, supra, at 209, 270 S.E. 2d at 434, quoting with approval Veazey v. Durham, supra, at 362, 57 S.E. 2d at 381-82; Green v. Duke Power Co., 50 N.C. App. 646, 648, 274 S.E. 2d 889, 891 (1981). Although plaintiff may suffer the necessity of a separate trial on his claims against the corporate defendants, the avoidance of a separate trial on those claims is not a “substantial right” entitling plaintiff to immediate appeal. See, Industries, Inc. v. Insurance Co., 296 N.C. 486, 491-93, 251 S.E. 2d 443, 447-48 (1979); Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E. 2d 338, 344 (1978); Green v. Duke Power Co., supra; see, Pasour v. Pierce, supra; but cf. Oestreicher v. Stores, supra (a substantial right of plaintiff would be affected if plaintiff’s claim for punitive damages was not heard before the same judge and jury as heard the claim for compensatory damages). This appeal is therefore premature and must be dismissed. Plaintiffs exception to Judge Lane’s order will be preserved. Appeal dismissed. Judges Vaughn and Clark concur.