Schneider v. Brunk

Judge Arnold

dissenting.

Because I believe the order appealed from does not affect a substantial right, I would dismiss the appeal as premature.

N.C. Gen. Stat. Sec. 1-277 in pertinent part provides:

(a) An appeal may be taken from every judicial order . . . which affects a substantial right claimed in any action or proceeding. . . .

N.C. Gen. Stat. Sec. 7A-27(d) in pertinent part provides:

From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which

(1) Affects a substantial right . . .

appeal lies of right directly to the Court of Appeals.

Our courts have recognized that these statutes run counter to the policy discouraging the delay and expense of fragmented appeals, and so have held that the statutes permitting immediate appeal of interlocutory orders should be strictly construed. See, e.g., Buchanan v. Rose, 59 N.C. App. 351 , 296 S.E. 2d 508 (1982); Funderburk v. Justice, 25 N.C. App. 655, 214 S.E. 2d 310 (1975). Recognizing this “restricted view of the ‘substantial right’ excep *567 tion,” this Court, in Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 334 , 299 S.E. 2d 777, 780 (1983) recently said:

[A]voidance of a rehearing or trial is not a “substantial right” entitling a party to an immediate appeal. [Citations omitted.] The right must be one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment. In other words, the right to immediate appeal is reserved for those cases in which the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed.

Id. at 335 , 299 S.E. 2d at 780-81 .

The majority bases its conclusion that the order in the instant case affects a substantial right on four considerations. I find each of the factors relied on by the majority to be unpersuasive in light of the facts and circumstances of this case, and will discuss each factor in turn.

First, says the majority, plaintiffs’ right to have all their claims heard before the same jury is a substantial right that will be affected if this Court delays decision of this appeal. The majority cites Bernick v. Jurden, 306 N.C. 435 , 293 S.E. 2d 405 (1982) and Swindell v. Overton, 62 N.C. App. 160 , 302 S.E. 2d 841 (1983), modified on other grounds, 310 N.C. 707 , 314 S.E. 2d 512 (1984) in support of its ruling in this regard. I have examined the cited cases and find them readily distinguishable from the instant case. I do not believe the principle set out by our Supreme Court in Bernick should be routinely applied in all cases involving multiple claims or parties so as to eliminate the provisions of Rule 54(b), nor do I believe that Bernick contemplates such a result. In Bernick the plaintiff demonstrated a genuine risk that he would be unjustly deprived of any recovery if forced to proceed separately against the defendants because the jury’s decision as to the liability of one defendant was logically essential to its determination of the liability of the other defendant. In the instant case, the plaintiffs have alleged that a dentist and an orthodontist each treated plaintiff Maureen Schneider in a negligent manner. The liability of one defendant is in no way contingent upon or connected to the liability of the other. Any verdict returned by the jury as to Dr. Wainright will not be “inconsistent” as a matter of law with any verdict returned as to Dr. Brunk. Because the cir *568 cumstances presented in Bernick are not present here, I find the case inapposite.

The majority next notes that plaintiffs “are also faced with the virtual eradication of their claims against the Wainright defendants.” While I do not disagree with this statement, I believe it goes to the merits of the case rather than to the issue of whether plaintiffs will be “irremediably adversely affected if the order is not reviewable before final judgment.” Blackwelder at 335 , 299 S.E. 2d at 780 .

The third factor noted by the majority in support of its ruling that a substantial right is involved is the “strong likelihood that the trial court will make the same ruling on Brunk’s Rule 12(b)(6) motion.” I believe the majority here indulges in precisely the unnecessary speculation about future rulings of the trial court that the provisions of Rule 54(b) seek to prevent. Furthermore, the probable decisions of the court below as to defendant Brunk are irrelevant to the question whether plaintiffs have demonstrated that the order appealed from affects a substantial right.

Finally, the majority notes that the claims against all defendants involve facts that are “identical and/or very closely related in time.” This aspect of the case is irrelevant to the statutory requirement that an interlocutory appeal will be allowed only if the order appealed from affects a substantial right. While perhaps properly considered in ruling on a petition for a writ of certiorari under App. Rule 21,1 believe it is improperly relied on by the majority in the procedural context of this case.

Finally, I wish to point out that the majority’s treatment of the question of whether this appeal is premature is an example of what I believe to be an increasingly frequent but misplaced concern for judicial economy. While it is indeed tempting for parties and judges alike to seek resolution of issues at the earliest possible moment, the Legislature and our Courts have decided that such an approach is, more often than not, “penny wise, pound foolish,” recognizing that review of interlocutory orders prior to final judgment presents a dangerous risk of delay, unnecessary expense, and fragmentary appeals. Because I believe the instant case involves all of those dangers and that plaintiffs have failed to *569 demonstrate that the order appealed from affects any substantial right, I would dismiss the appeal.