Reid v. Cole

JACKSON, Judge,

dissenting.

For the reasons stated below, I respectfully dissent from the majority’s conclusion to reach the merits of this case. I would (1) hold that the order is interlocutory, (2) grant the motion to dismiss, and (3) deny the petition for writ of certiorari.

The majority cites Staton v. Russell, 151 N.C. App. 1, 565 S.E.2d 103 (2002), in support of granting certiorari stating “the administration of justice will best be served by granting defendants’ petition.” I do not think granting certiorari in this case is warranted, however, as I do not believe that it falls within the criteria established by extensive and longstanding precedent pertaining to interlocutory appeals.

Staton clearly is distinguishable from the instant case. It involved five separate lawsuits with cross-claims and third-party claims which spanned six years. The parties included a United States citizen residing in Virginia, two resident citizens of Columbia, South America— one of whom also was a United States citizen — and two Florida revocable living trusts. Oddly, the appellants and appellee were not adverse parties in any of the five North Carolina lawsuits. The appeal involved a North Carolina order enjoining a related declaratory judgment action filed in Florida. Due to the complexity of the Staton case, it is understandable that this Court would grant certiorari.

The facts of the instant case are quite dissimilar to those in Staton. Notwithstanding the fact that there are two appeals currently before this Court, underlying both is but a single action for wrongful death. There are no cross-claims or third-party claims. All the parties are North Carolina residents or business entities. There is no out-of-state lawsuit involved. Further, although there is some likelihood that dismissing this appeal would only delay our ultimate review, such likelihood is no more so than with any other case of the denial of a motion to dismiss based upon an interlocutory appeal.

Defendants argue that the denial of their motion to dismiss affects a substantial right in that it involves a complaint that should have been treated as a legal nullity; if not reversed, the ruling will allow an illegal and void lawsuit to continue against them. A two-part test has developed to assess the appealability of interlocutory orders as a “substantial right.” J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5, 362 S.E.2d 812, 815 (1987). “First, the right itself must be ‘substantial.’ Second, the enforcement of the substantial right must be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order.” Id. at 5-6, 362 S.E.2d at 815 (internal citations omitted).

Here, there is no substantial right which will not be preserved for later appeal, and delay would not injure defendants, other than the ordinary costs of defending the action. “[A]voiding the time and expense of trial is not a substantial right justifying immediate appeal.” Lee v. Baxter, 147 N.C. App. 517, 520, 556 S.E.2d 36, 38 (2001). Accordingly, I would grant the motion to dismiss and deny the petition for writ of certiorari.