Watch v. United States Fire Insurance, 90 N.C. App. 140 (1988)

May 3, 1988 · North Carolina Court of Appeals · No. 8712SC1106

90 N.C. App. 140

PELICAN WATCH, a North Carolina Partnership, and DERWOOD H. GODWIN, SR., OSCAR L. NORRIS, MURRAY O. DUGGINS, KENNETH M. NORRIS, and DEBORAH N. HOOKER, the general partners of Pelican Watch, Plaintiffs-Appellants v. UNITED STATES FIRE INSURANCE COMPANY and AMERICAN INTERNATIONAL CONSULTANTS, INC., Defendants-Appellees

No. 8712SC1106

(Filed 3 May 1988)

Appeal and Error § 6.2— appeal from order which was not final — court’s finding that order affected substantial right and that there was no reason for delay improper

Defendant’s appeal was from a partial summary judgment for plaintiffs on the issue of liability only which was not final within the meaning of N.C.G.S. § 1-277, and plaintiffs’ appeal was from a judgment which disposed of fewer than all the claims or the rights and liabilities of fewer than all the parties and did not involve a substantial right within the meaning of N.C.G.S. § 1-277; furthermore, a finding by the trial court that its order affected a substantial right and that there was no reason for delay in obtaining appellate review was insufficient to make the judgment final, and the premature and piecemeal appeals are therefore dismissed.

APPEAL by plaintiffs and defendant United States Fire Insurance Company from Smith, Judge. Judgment entered 10 August 1987 in Superior Court, Cumberland County. Heard in the Court of Appeals 13 April 1988.

This is a civil action wherein plaintiffs seek to recover from defendants, jointly and severally, actual damages, damages for unfair or deceptive trade acts or practices, and punitive damages arising out of a contract of insurance issued by defendant United States Fire Insurance Company through defendant American International Consultants, Inc., to plaintiffs.

On 1 April 1987, defendant United States Fire Insurance Company made a motion for summary judgment. Immediately before the hearing on the motion for summary judgment, plaintiffs voluntarily dismissed “without prejudice” their claims against defendant American International Consultants, Inc. After a hearing on the motion for summary judgment, on 14 August 1987, the trial judge entered summary judgment for defendant United States Fire Insurance Company for “actual damages,” and entered summary judgment for plaintiffs “against the defendant USFIC on the liability issues on plaintiffs’ claim made pursuant to N.C.G.S. Chapter 75 and N.C.G.S. Sec. 58-54.4 and plaintiffs’ claim under the common law for punitive damages. . . .” The trial judge further stated the order affected “substantial rights” of both parties and “that there is no reason for delay in obtaining appellate review. . . .” Plaintiffs and defendant United States Fire Insurance Company appealed.

Tuggle Huggins Meschan & Elrod, P.A., by J. Reed Johnston, Jr., for plaintiffs.

Henson Henson Bayliss & Coates, by Perry C. Henson and Jack B. Bayliss, Jr., for defendant United States Fire Insurance Company.

HEDRICK, Chief Judge.

Defendant’s appeal is from a judgment that is not final within the meaning of G.S. 1-277. The appeal is from a partial summary judgment for plaintiffs on the issue of liability only, and will be dismissed. Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979); Insurance Co. v. Dickens, 41 N.C. App. 184, 254 S.E. 2d 197 (1979).

Plaintiffs’ appeal is from a judgment that disposes of “fewer than all the claims or the rights and liabilities of fewer than all the parties,” and does not involve a substantial right within the meaning of G.S. 1-277, and will be dismissed. G.S. 1A-1, Rule 54(b).

While the trial judge did find “there is no reason for delay in obtaining appellate review . . . ,” as Chief Justice Exum said in Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E. 2d 443, 447 (1979), a trial judge cannot “by denominating his decree a ‘final judgment’ make it immediately appealable under Rule 54(b) if it is not such a judgment.” A finding that “there is no just reason for delay” under Rule 54(b) is not enough. The judgment must also be final. Cook v. Tobacco Co., 47 N.C. App. 187, 266 S.E. 2d 754 (1980).

Premature and piecemeal appeals serve no purpose but to delay final judgments and thrust upon the appellate division multiple appeals. Both appeals will be dismissed, and the causes will be remanded to the superior court for further proceedings.

Appeals dismissed.

Judges Wells and Cozort concur.