stating: “Assuming, arguendo, that the case here is an interlocutory appeal, we elect to consider the appeal by granting [the] appellant’s petition for writ of certiorari according to N.C.R. App. P. 21(a)(1).”
How later courts described this case
- stating: “Assuming, arguendo, that the case here is an interlocutory appeal, we elect to consider the appeal by granting [the] appellant’s petition for writ of certiorari according to N.C.R. App. P. 21(a)(1).”
- "Defendants contend that their assertion of a Rule 12(b)(6
Written by the judges who cited it.
The opinion
GREENE, Judge,
concurring.
I agree with the majority as to merits of defendants’ appeal. I write separately, however, to point out that defendants did not appeal from an interlocutory order and, therefore, a writ of certiorari is not necessary to hear this appeal.
As stated by the majority, “[a]n interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 357, 362 , 57 S.E.2d 377, 381 (1950); see also Blackwelder v. Dept. of Hum. Res., 60 N.C. App. 331, 333 , 299 S.E.2d 777, 779 (1983) (a ruling is interlocutory if it “directs some further proceeding preliminary to final decree”). When a case is dismissed, with or without prejudice, no further action is required of the trial court in order to settle or determine the controversy between the parties. See Ward v. Taylor, *713 68 N.C. App. 74, 78 , 314 S.E.2d 814, 818 (1984) (“[i]t is well established that where [the] plaintiff takes a voluntary dismissal pursuant to G.S. 1A-1, Rule 41(a)(1), no suit is pending thereafter on which the court could make a final order”); Collins v. Collins, 18 N.C. App. 45, 50 , 196 S.E.2d 282, 286 (1973) (the plaintiffs voluntary dismissal of a prior action “was a final termination of that action and ... no valid order could be made thereafter in that cause”). Accordingly, the trial court’s order dismissing plaintiff’s case without prejudice is not interlocutory and defendants have a right to appeal from this order. See Miller v. Ferree, 84 N.C. App. 135, 136 , 351 S.E.2d 845, 847 (1987) (holding appeal from an order dismissing action without prejudice was properly before this Court).