Community Bank v. Whitley

449 S.E.2d 226 (1994) 116 N.C. App. 731

The COMMUNITY BANK, Plaintiff-Appellant,
v.
Richard E. WHITLEY, Wanda M. Whitley, and Marineland Outdoor Center, Incorporated, Defendants-Appellees.

No. 9317SC1215.

Court of Appeals of North Carolina.

November 1, 1994.

House & Blanco, P.A. by John S. Harrison, Winston Salem, for plaintiff-appellant.

Donnelly & DiRusso by Gus L. Donnelly, Mount Airy, for defendants-appellees.

PER CURIAM.

Plaintiff appeals the denial of its motion for summary judgment. Typically, "the denial of a motion for summary judgment is a nonappealable interlocutory order." Northwestern Financial Group v. County of Gaston, 110 N.C.App. 531, 535, 430 S.E.2d 689, 692, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). Despite this general rule, this Court will address the merits of such an appeal if "a substantial right of one of the parties would be lost if the appeal were not heard prior to the final judgment." Id. Our Supreme has stated that "the denial of a motion for summary judgment based on the defense of res judicata may affect a substantial right." Bockweg v. Anderson, 333 N.C. 486, 491, 428 S.E.2d 157, 161 (1993) (italics omitted). A substantial right is likely to be affected where a possibility of inconsistent verdicts exists if the case proceeds to trial, but the facts of this case would not lead to such an outcome. Further, we do not believe these facts present a compelling case for premature review. Accordingly, plaintiff's appeal is dismissed as interlocutory.

Dismissed.