NAN v. NATIONWIDE INSURANCE COMPANY (2019)

When a plaintiff appeals from an order dismissing her claims against some but not all defendants, and no substantial right was implicated in the court's order, that appeal is interlocutory and subject to dismissal.

Plaintiff Elizabeth M.T. O'Nan (“Plaintiff”) brought suit against Defendants for breach of contract, negligence, and other causes of action. Plaintiff appeals from the trial court's order dismissing all of her claims except for those against ServPro Industries, Inc (“ServPro”). Because claims against one defendant remain pending before the trial court, we dismiss Plaintiff's appeal.

FACTUAL AND PROCEDURAL HISTORY

On 4 December 2013, Plaintiff's home was damaged in a chimney fire. Plaintiff's homeowner's insurance provider, Defendant Nationwide Mutual Fire Insurance Company (“Nationwide”), referred her to ServPro for repairs and restoration. A week later, Plaintiff executed a contract with ServPro of McDowell and Rutherford Counties, a franchise of Servpro. ServPro agreed to “perform any and all necessary cleaning and/or restoration services” and Nationwide was authorized to directly pay Servpro for work covered by Plaintiff's policy.

On 30 November 2016, Plaintiff filed a complaint in McDowell County Superior Court alleging breach of contract, negligence, and other causes of action against ServPro, Nationwide, and the ServPro franchise. On 4 January 2017, Nationwide removed the case to the United States District Court for the Western District of North Carolina. While in federal court, Plaintiff filed a motion to remand and a first and later second amended complaint. Each of Plaintiff's amended complaints added a number of defendants and causes of action. Defendants filed motions to dismiss each of Plaintiff's complaints.¹

Plaintiff's motion to remand was granted on 11 July 2017.

In McDowell County Superior Court, Defendants filed motions to dismiss Plaintiff's second amended complaint, and Plaintiff filed a motion to amend her complaint.² The trial court heard arguments on these motions on 9 October 2017. On 8 November 2017, the court entered a written order denying Plaintiff's motion and dismissing Plaintiff's claims as to all defendants except Servpro, which had declined to join in the motion to dismiss at that time. The court's order was not certified for immediate appeal.

Plaintiff filed notice of appeal on 29 November 2017. Defendants-Appellees filed a motion to dismiss this appeal on 15 October 2018.

ANALYSIS

When a trial court grants a motion to dismiss claims as to some, but not all parties, that order is interlocutory. Pentecostal Pilgrims & Strangers Corp. v. Connor, 202 N.C. App. 128, 131, 688 S.E.2d 81, 83 (2010). “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). In this case, the dismissal order appealed from explicitly states that it is “limited to the above-mentioned parties and do[es] not address Defendant Servpro Industries, Inc., which is the final remaining Defendant in this cause of action.” Plaintiff's statement of organization of the trial court also acknowledges that one defendant remains in the underlying case.³

Our statutes create a handful of exceptions to the general rule that there is no right of immediate appeal from interlocutory orders. The trial court may certify an interlocutory order under Rule 54(b) of the Rules of Civil Procedure, or the order may fall within one of the categories enumerated in Section 7A-27(b) of our General Statutes—most commonly by affecting a substantial right of the appealing party. Brown v. Brown, 77 N.C. App. 206, 207-8, 334 S.E.2d 506, 507-8 (1985). In this case, the trial court declined to certify the order for immediate appeal and, as no substantial right is implicated, Section 7A-27(b) does not apply.

A substantial right entitling a party to immediate appeal is one “which will clearly be lost or irremediably adversely affected if the [interlocutory ruling] is not reviewable before final judgment.” Blackwelder v. Dep't of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780-81 (1983). Plaintiff bears the burden of establishing that a substantial right is implicated. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). Here, Plaintiff identifies the “right of access to a court of cognizable jurisdiction” as the substantial right at issue. However, Plaintiff does not explain why the “normal course of procedure is inadequate to protect” this right. Blackwelder, 60 N.C. App. at 335, 299 S.E.2d at 781-82. While the trial court's order was dispositive as to the dismissed defendants, Plaintiff can properly appeal that decision once a final disposition has been reached as to all claims and parties, enjoying full access to the court system and appellate process.

Plaintiff also argues that her appeal is allowed by N.C. Gen. Stat. § 1-277. This statute allows for immediate appeal from “an adverse ruling as to the jurisdiction of the court over the person or property of the defendant.” N.C. Gen. Stat. § 1-277(b) (2017). It is true that the trial court's order cited “lack of personal jurisdiction” as one of the reasons it granted Defendants’ motions to dismiss. However, it is clear from the record that the court's finding of a lack of personal jurisdiction was based on Plaintiff's failure to comply with the requirements of service of process provided by Rule 4 of the Rules of Civil Procedure, and not a finding that any defendants lacked minimum contacts with the State. The right of immediate appeal pursuant to Section 1-277(b) arises only from decisions involving questions of minimum contacts, not sufficiency of process or service of process. Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d, 141, 146 (1982). The statute is inapplicable in this case.

Plaintiff appeals from an interlocutory order and identifies no substantial right affected by this order. Accordingly, we must dismiss Plaintiff's appeal as interlocutory.

DISMISSED.

Report per Rule 30(e).

FOOTNOTES

1.   Defendants’ motions to dismiss Plaintiff's original and first amended complaint were filed in federal district court, but their motions regarding the second amended complaint could not be filed in federal court due to the stay imposed pending Plaintiff's motion to remand. The motions to dismiss the second amended complaint were ultimately filed in McDowell County Superior Court.

2.   Plaintiff's motion requested that the court replace the original complaint with the second amended complaint, which had been filed in federal district court. The court denied Plaintiff's motion to amend, but it is clear from the record that the court had already incorporated pleadings from the federal proceedings and adopted the second amended complaint as the operative complaint, as the dismissal order dismissed claims against all defendants added in the amended complaints.

3.   Servpro, the remaining defendant, has filed its own motion to dismiss in the trial court. That motion is stayed pending this appeal.

INMAN, Judge.

Judges ARROWOOD and BROOK concur.