Nichols v. State Employees' Credit Union

WELLS, Judge.

Although the parties have not raised the issue of the appealability of the trial court’s order, it is nonetheless our duty to do so if we believe the appeal is premature. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E. 2d 338 (1978). We believe that for the same reasons we have today held that the granting of summary judgment as to less than all the parties in a multiple party suit is normally not appealable [see, Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240 (1980)], the present appeal may not be entertained. Plaintiff will not be denied a “substantial right” under G.S. 1-277 and G.S. 7A-27 by delaying his appeal until all matters in issue have been resolved at trial. Waters v. Personnel, Inc., supra; accord, Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979). We believe that the “substantial right” exception to Rule 54(b) certification has been limited by the Court to those situations where the substance of an appealing party’s claim or defense would be reduced, or where the appealing party would incur some other direct injury, if the appeal were not heard prior to entry of a final judgment disposing of all of the claims of all of the parties. We see no such substantial right of the plaintiff affected here.

As can be seen via the model we adopted in Leasing Corp. v. Myers, supra, — N.C. App. at —, — S.E. 2d at —: (1) the right to appeal has not been conferred by statute — no substantial right of the defendant has been affected; (2) there has not been a judgment as to all of the claims; (3) the specific action of the trial court from which appeal has been taken is final in nature; and (4) the trial court has failed to certify, under Rule 54(b), that the judgment is final and that there is no just reason for delay. Accordingly, the present appeal is premature.

Appeal dismissed.

Judge HEDRICK concurs. Judge WEBB dissenting.