holding summary judgment was properly granted when the plaintiff failed to file affidavits contradicting factual matters established by the defendant’s affidavits
How later courts described this case
- holding summary judgment was properly granted when the plaintiff failed to file affidavits contradicting factual matters established by the defendant’s affidavits
- granting certiorari where there was the potential for “additional litigation [which] would be a waste of judicial resources”
Written by the judges who cited it.
The opinion
*276 STEELMAN, Judge
dissenting.
I agree with the majority’s discussion of the interlocutory nature of both appeals contained in part II of the opinion, but disagree with the manner in which the majority resolves this issue.
There has been a disturbing trend in recent years of parties appealing interlocutory orders of the trial court where no right of appeal exists under either N.C. Gen. Stat. § 1-277 or N.C. Gen. Stat. § 7A-27(d). As noted by the majority, the parties in this case have candidly acknowledged the questionable legal basis for their appeals. The majority chastises the parties for their conduct and then in the interests of judicial economy utilize Rules 2 and 21 of the North Carolina Rules of Appellate Procedure to hear both appeals. I respectfully suggest that creating a way to hear an improper interlocutory appeal does nothing but encourage such conduct by parties in the future.
Both Rule 2 and Rule 21 are discretionary rules. This Court does have the discretion to hear and rule on both of the appeals in this matter. However, I question the wisdom of doing so in this case. There are numerous appeals which this Court has dismissed as being interlocutory during the year 2005, to date. See e.g. Hinson v. Jarvis, 170 N.C. App. 697 , 614 S.E.2d 608 (2005) (unpublished); State Auto. Mut. Ins. Co. v. Iadanza, 170 N.C. App. 437 , 613 S.E.2d 753 (2005) (unpublished); Grant v. Miller, 170 N.C. App. 184 , 611 S.E.2d 477 (2005); Milton v. Thompson, 170 N.C. App. 176 , 611 S.E.2d 474 (2005); In re B.P., 169 N.C. App. 728, 612 S.E.2d 328 (2005); Atwood v. Eagle, 169 N.C. App. 255, 611 S.E.2d 899 (2005) (unpublished); N.C. Dep’t of Transp. v. Williams, 168 N.C. App. 728 , 609 S.E.2d 498 (2005) (unpublished); Johnson v. Lucas, 168 N.C. App. 515 , 608 S.E.2d 336 (2005); Mech. Sys. & Servs. v. Carolina Air Solutions, 168 N.C. App. 240 , 607 S.E.2d 55 (2005) (unpublished); Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36 , 606 S.E.2d 734 (2005); Stewart v. N.C. Dep’t of Juvenile Justice, 167 N.C. App. 808 , 606 S.E.2d 458 (2005) (unpublished); Robinson v. Gardner, 167 N.C. App. 763 , 606 S.E.2d 449 (2005).
Unless the Rules of Appellate Procedure are consistently applied they become meaningless. Viar v. N. C. Dep’t of Transp., 359 N. C. 400, 402 , 610 S.E.2d 360, 361 (2005).