Pasour v. Pierce , 46 N.C. App. 636 ( 1980 )

265 S.E.2d 652 (1980)

Nancy R. PASOUR
v.
Joseph S. PIERCE, Jr.; Robert L. Heavner; John E. Jenkins; James I. Cox; and Larry L. Brittain, Individually and d/b/a Five Star Developers; Joseph S. Pierce, Jr.; Robert L. Heavner; John E. Jenkins; James I. Cox; Larry L. Brittain; and Edward E. Stebbins, Individually and d/b/a Hospital Plaza Associates; Pierce, Heavner & Jenkins Builders, Inc.; and The City of Gastonia, North Carolina.

No. 7927SC988.

Court of Appeals of North Carolina.

May 6, 1980.

Harris & Bumgardner by R. Dennis Lorance, Gastonia, for plaintiff-appellant.

City Atty. Henry M. Whitesides and Asst. City Atty. Thomas C. Pollard, Gastonia, for defendant-appellee City of Gastonia.

HEDRICK, Judge.

Ordinarily, the allowance of a motion to dismiss is immediately appealable. This case, however, obviously involves multiple defendants, and the Order granting the City's motion to dismiss purports to dispose of the case as to that defendant only. G.S. § 1A-1, Rule 54(b), provides in pertinent part:

Judgment upon multiple claims or involving multiple parties.—When more than one claim for relief is presented in an action, . . . 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.

It should be noted that section (b) of this rule does not define a final judgment. Rather, it simply provides for (1) the entry of such a judgment as to fewer than all the claims or all the parties in a multiple claim or multiple party lawsuit, and (2) a procedure whereby such a judgment as to fewer than all the claims or all the parties is immediately appealable. Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979). While the record before us does not disclose what disposition, if any, has been made of plaintiff's claim against any defendants besides the City of Gastonia, counsel for plaintiff advised this Court at oral argument that those claims are still pending in the Superior Court of Gaston County. Clearly, the granting of the City's motion to dismiss the complaint as to it disposes of "the rights and liabilities of fewer than all the parties." Moreover, the court did not employ the procedure established by the rule to assure an immediate appeal of its Order dismissing the plaintiff's claim against the City since nowhere in the order did the court certify that "there is no just reason for delay." See Arnold v. Howard, 24 N.C.App. 255, 210 S.E.2d 492 (1974). This Court has held that "the signing of an appeal entry by the trial court cannot, in and of itself, be held to satisfy the affirmative act of certification required by Rule 54(b)." Equitable Leasing Corp. v. Myers, ___ N.C.App. ___, ___, 265 S.E.2d 240, 247 (1980). Although the question has not been raised by the defendant, it is the duty of an appellate court to dismiss an appeal if there is no right to appeal. Waters v. Qualified Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978).

Accordingly, we hold that the plaintiff's appeal is premature and must be dismissed.

Appeal dismissed.

ARNOLD and ERWIN, JJ., concur.