Arnold v. Howard , 24 N.C. App. 255 ( 1974 )

210 S.E.2d 492 (1974) 24 N.C. App. 255

Roy ARNOLD, Plaintiff,
v.
Ronald W. HOWARD and Linda H. Howard, Original Defendants, and
James F. CLARDY, Third-Party Defendant.

No. 7426SC627.

Court of Appeals of North Carolina.

December 18, 1974.

Lloyd F. Baucom, Charlotte, for original defendants, Ronald W. Howard and Linda H. Howard.

Thomas Ashe Lockhart and Joe C. Young, Charlotte, for third-party defendant, James F. Clardy.

PARKER, Judge.

Rule 54(b) of the Rules of Civil Procedure, G.S. § 1A-1, Rule 54(b), is as follows:

"(b) Judgment upon multiple claims or involving multiple parties.—When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." (Emphasis added.)

Although the parties have raised no question concerning the matter, we note that the judgment from which the original defendants now purport to appeal adjudicates "the rights and liabilities of fewer than all the parties" and that it contains no determination that "there is no just reason for delay." Our Rule 54(b) is substantially similar to the Federal Rule 54(b) as that Rule was amended in 1961, and it is therefore appropriate to look to Federal decisions and authorities for guidance in applying our Rule. As those authorities point out, the need for Rule 54(b) arose from the increased opportunity for liberal joinder of claims and parties which the new Rules of Civil Procedure provided. For analysis and discussion of the history and purposes served by Federal Rule 54(b), see 6 Moore"s Federal Practice, ¶ 54.01 et seq.; 10 Wright and Miller, Federal Practice and Procedure, § 2660. As described by the United States Supreme Court, under Rule 54(b) the trial 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." Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297, 1306 (1956). Under the Federal Rule 54(b) as amended in 1961 and under the North Carolina Rule 54(b), the trial court performs that function also in multiple-party actions as well as in multiple-claim actions. Under the North Carolina Rule, the trial court is granted the discretionary power to enter a final judgment as to one or more but fewer than all of the claims or parties, "only if there is no just reason for delay and it is so determined in the judgment." (Emphasis added.) By making the express determination in the judgment that there is "no just reason for delay," the trial judge in effect certifies that the judgment is a final judgment and subject to immediate appeal. In the absence of such an express determination in the judgment, Rule 54(b) makes "any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties," interlocutory and not final. By express provision of the Rule, such an order remains "subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties," and such an order is not then "subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes." G.S. § 1-277 is not such an express authorization. See Comment to G.S. § 1A-1, Rule 54(b).

Since, the judgment from which the original defendants now attempt to appeal in the present case adjudicates "the rights and liabilities of fewer than all the parties" and since it contains no determination by the trial judge that "there is no just reason for delay," the judgment is interlocutory and not presently appealable. Accordingly, the attempted appeal of the original defendants is

Dismissed.

BROCK, C. J., and MARTIN, J., concur.