Clements v. ARC NCCHRNC001, LLC

• Court: Court of Appeals of North Carolina
• Decided: January 21, 2026
• Docket: 25-488
• Status: Unpublished
• Author: Judge April Wood

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedu re.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-488

Filed 21 January 2026

Mecklenburg County, No. 24CV030897-590

THE ESTATE OF JAMIELLE LAMAR CLEMENTS, BY AND THROUGH ITS ADMINISTRATRIX, DEANA COSBY, Plaintiff,

v.

ARC NCCHRNC001, LLC; HIFFMAN ASSET MANAGEMENT, LLC D/B/A “HIFFMAN NATIONAL”; DENISE MANN; S&S MANAGEMENT GROUP, LLC D/B/A “SECURITY SOLUTIONS OF AMERICA”; FUN EATS & DRINKS, LLC D/B/A “FOX & HOUND BAR & GRILL”; JERRY THOMAS; ALDO EUGENE BROZZETTI; PATRICK QUERRY; FIREBIRDS OF CHARLOTTE, LLC; KEENAN DOLIVEIRA; AND JUSTICE DAVIS, Defendants.

Appeal by Plaintiff from an order entered 5 February 2025 by Judge Matthew

John Osman in Mecklenburg County Superior Court. Heard in the Court of Appeals

23 October 2025 in session at High Point University School of Law in the City of High

Point pursuant to N.C. Gen. Stat. § 7A-19(a).

Howard Stallings Law Firm, by Matthew T. Langston and Robert H. Jessup, IV, for the Plaintiff-Appellant.

McAngus, Goudelock & Courie, PLLC, by Jeffrey B. Kuykendal, for the Defendants-Appellees.

WOOD, Judge. CLEMENTS V. ARC NCCHRNC001, LLC

Opinion of the Court

The Estate of Jamielle Lamar Clements, by and through its Administratrix,

Deanna Cosby (“Plaintiff”) appeals from the trial court’s order granting Defendant’s,

Firebirds of Charlotte, LLC d/b/a “Firebirds Wood Fired Grill” (“Firebirds”), Rule

12(b)(6) motion to dismiss. Interlocutory appeals may be heard in limited

circumstances, however, after careful review of the record and applicable law we

conclude this interlocutory order is unappealable as the trial court did not certify the

order as immediately appealable under Rule 54(b) and no substantial right is

affected. Thus, for those reasons the appeal must be dismissed for lack of appellate

jurisdiction.

I. Factual and Procedural Background1

On 5 October 2022, Keenan Doliveira (“Doliveira”) went to Firebirds Wood

Fired Grill located at Northlake Mall. Doliveira was a “well-known regular” at

Firebirds and, on this evening, consumed many alcoholic beverages. “[D]espite the

fact that he became, and appeared, visibly intoxicated, Defendant Firebirds’

bartenders continued serving [] Doliveira alcoholic beverages, primarily liquor.”

Plaintiff alleges Firebirds’ employees continued to serve Doliveira “past the point of

intoxication [that] could cause him to engage in behaviors that may endanger himself

and others.”

1 The factual and procedural background section as written presumes that the factual

allegations in Plaintiff’s complaint are true.

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After leaving Firebirds sometime after 9:00 p.m., Doliveira drove to Northlake

Commons Shopping Center (“Northlake Commons”) where he “loitered in the parking

lot smoking cigarettes,” then entered the Fox & Hound restaurant and sat at the bar.

When Doliveira attempted to purchase an alcoholic beverage, one of the bartenders

suspected his credit card may be fraudulent and asked Doliveira about it. In

response, Doliveira insulted the bartender prompting Christopher Lynch (“Lynch”),

the manager on duty, to be called over. When Lynch informed Doliveira that his

credit card appeared to be fraudulent the situation escalated. Doliveira yelled at

Lynch, “I’ll smack the s*** out of you!” causing Lynch to laugh, which further heated

the situation. Ultimately, security personnel escorted Doliveira out of Fox & Hound;

and Doliveira pushed Lynch on the way out. Once outside, Doliveira yelled, “I’ll shoot

everyone!” Fox & Hound employees attempted to find a Northlake Commons security

guard, but no further action was taken.

Doliveira remained at Northlake Commons, harassed patrons and businesses

while wearing a ski mask, and attempted to break into a tobacco and vape shop.

Northlake Commons security guards did not respond.

At approximately 10:21 p.m., Doliveira, still wearing the ski mask, returned to

Fox & Hound with Justice Davis (“Davis”). Fox & Hound employees recognized

Doliveira from earlier in the evening and immediately searched for the security

guard. When they could not find the security guard, a bartender yelled to the kitchen

staff for help. Jamielle Lamar Clements (“Jamielle”) was one of the kitchen staff

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members to respond to the bartender’s yell for help. When Doliveira “shouted and

threatened everyone in the vicinity,” Jamielle diverted Doliveira’s attention away

from everyone and onto himself. Everyone then moved outside into the common area

of Northlake Commons as a fight broke out between Doliveira and Jamielle. Davis

handed Doliveira a gun, causing the crowd to scatter. Doliveira fired five shots into

the crowd, four of which hit Jamielle. Doliveira then “severely beat [Jamielle] on the

head with [the] gun” while he lay unconscious on the ground. Jamielle was

pronounced dead at approximately 11:46 p.m.

On 8 July 2024, Plaintiff filed a complaint alleging seven claims for relief

against eleven defendants involved in the circumstances on the night of Jamielle’s

death. Plaintiff’s fifth claim for relief against Firebirds and Fox & Hound restaurants

asserted negligence, negligence per se, gross negligence, and gross negligence per se

under dram shop liability. On 13 September 2024, Firebirds filed a motion to dismiss

pursuant to Rule 12(b)(6), a motion to bifurcate pursuant to N.C. Gen. Stat. § 1D-30,

and an answer asserting eight affirmative defenses.

Firebirds asserted the following affirmative defenses: (1) Firebirds “did not owe

any legal duty to the Plaintiff and to the extent it did owe such duty, the duty was

not breached”; (2) contributory negligence, alleging Jamielle had failed to follow

policies and procedures of his employer, escalated the altercation, and “placed himself

in a position of peril which he knew or should have known could have led to harm”;

(3) intervening and superseding negligence by other parties; (4) Firebirds actions

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were not the proximate cause of the harm caused by Doliveira and Davis because

their actions were not reasonably foreseeable; (5) Firebirds is entitled to a set-off or

reduction of any amount Plaintiff may obtain from verdict against them to the extent

Plaintiff has been paid by another party or will be paid by another party; (6) request

for spoliation instruction at trial; (7) employer negligence pursuant to N.C. Gen. Stat.

§ 97-10.2(e) in that Fox & Hound failed to train Jamielle; and (8) reservation of right

to assert other affirmative defenses following discovery.

On 23 January 2025, the trial court conducted a hearing and granted Firebirds’

motion to dismiss pursuant to Rule 12(b)(6), dismissing all claims against Firebirds

with prejudice. The trial court declined to certify its order for immediate appeal

under Rule 54(b). Plaintiff filed notice of appeal on 18 February 2025.

On 25 February 2025, Hiffman Asset Management, LLC d/b/a “Hiffman

National,” S&S Management Group, LLC d/b/a “Security Solutions of America,” Fun

Eats & Drinks, LLC d/b/a “Fox & Hound Bar & Grill” and Jerry Thomas, and

Firebirds (collectively “Moving Defendants”) filed a motion to stay the pending appeal

pursuant to N.C. Gen. Stat. § 1-294 and Rule 8(a) to stay this action while Plaintiff

appeals from the order dismissing Firebirds. Moving Defendants argued that if the

order granting Firebirds motion to dismiss is immediately appealable, the trial court

must stay the remaining claims of the case until the appeal is resolved. On 4 April

2025, the trial court filed its order denying the motion to stay pending appeal.

II. Analysis

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Plaintiff argues the trial court erred by dismissing the claims against Firebirds

because: (1) the complaint set out a “prima facie negligence case against Firebirds for

its conduct that violated the Dram Shop Act”; and (2) the trial court erred by

determining “Jamielle’s death was not foreseeable and that a Dram Shop claim does

not extend to violent acts of an intoxicated person.” While Firebirds argues Jamielle’s

death was not foreseeable and the trial court’s order should be affirmed, they first

contend this appeal should be dismissed as interlocutory prior to reaching the merits.

A. Interlocutory Appeal

“Ordinarily, this Court hears appeals only after entry of a final judgment that

leaves nothing further to be done in the trial court.” Denney v. Wardson Constr., Inc.,

264 N.C. App. 15, 17, 824 S.E.2d 436, 438 (2019) (quoting Crite v. Bussey, 239 N.C.

App. 19, 20, 767 S.E.2d 434, 435 (2015)). In the case sub judice, Plaintiff concedes

this appeal is interlocutory but contends we should review their appeal on the merits

because a substantial right would be affected otherwise. In contrast, Firebirds

contends this appeal should be dismissed as no substantial right would be affected by

denying immediate review. We agree.

This Court utilizes a two-part test to determine whether an interlocutory order

is appealable in the absence of a Rule 54(b) certification. It must first be determined

“whether a substantial right is affected by the challenged order and,” second,

“whether this substantial right might be lost, prejudiced, or inadequately preserved

in the absence of an immediate appeal.” Hamilton v. Mortg. Info. Servs., Inc., 212

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N.C. App. 73, 78, 711 S.E.2d 185, 189 (2011). “Whether a particular ruling ‘affects a

substantial right must be determined on a case-by-case basis.’” Doe v. City of

Charlotte, 273 N.C. App. 10, 22, 848 S.E.2d 1, 10 (2020) (quoting Hamilton, 212 N.C.

App. at 78, 711 S.E.2d at 189). “The appealing party bears the burden of

demonstrating that the order from which he or she seeks to appeal is appealable

despite its interlocutory nature.” Hamilton, 212 N.C. App. at 77, 711 S.E.2d at 189.

To meet their burden, “the appellant must include in its opening brief, in the

statement of the grounds for appellate review, ‘sufficient facts and argument to

support appellate review on the ground that the challenged order affects a substantial

right.’” Denney, 264 N.C. App. at 17, 824 S.E.2d at 438 (emphasis added) (quoting

Larsen v. Black Diamond French Truffles, Inc., 241 N.C. App. 74, 77, 772 S.E.2d 93,

95 (2015)). “The appellant[] must present more than a bare assertion that the order

affects a substantial right; they must demonstrate why the order affects a substantial

right” and apply the particular facts of the case at issue. Greenbrier Place, LLC v.

Baldwin Design Consultants, P.A., 280 N.C. App. 144, 146, 866 S.E.2d 332, 335 (2021)

(quoting Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 572,

576 (2009)).

1. Inconsistent Verdicts

In the case sub judice, Plaintiff argues that a substantial right is affected

because “[t]he risk of inconsistent verdicts arises from the element of proximate

cause” and proximate cause is the main issue in dispute. Specifically, Plaintiff asserts

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in their opening brief:

A jury could reasonably find that any negligence by the remaining defendants, such as a failure to adequately secure the premises on which Jamielle was killed, was not the proximate cause of Jamielle’s death. Its basis could be that Firebirds’ negligence in overserving Doliveira caused his intoxication, set the stage for his conduct ending in Jamielle’s death, and was a superseding cause that shields those defendants from liability. However, if the Estate is later able to reassert claims against Firebirds in a separate trial, a different jury might reasonably find that Firebirds could not have foreseen Doliveira’s violent conduct or that negligence by one or more of the other defendants was an intervening cause that shields Firebirds from any liability. These conflicting outcomes would be irreconcilable and undermine the fairness of the judicial process, along with plainly prejudicing and harming the Estate.

This Court has held that the “risk that a litigant may be forced to endure two

trials, rather than one, does not by itself implicate a substantial right, even if those

separate trials involve related issues or stem from the same underlying event.” Doe,

273 N.C. App. at 21, 848 S.E.2d at 10. “The inconsistent verdicts doctrine is a subset

of the substantial rights doctrine” and the “appellant is required to show ‘that the

same factual issues are present in both trials and that appellants will be prejudiced

by the possibility that inconsistent verdicts may result.’” Greenbrier Place, 280 N.C.

App. at 147, 866 S.E.2d at 335 (quoting Nguyen v. Taylor, 200 N.C. App. 387, 391,

684 S.E.2d 470, 473 (2009)). “[T]he appellant cannot meet its burden under the

inconsistent verdicts doctrine simply by asserting that ‘the facts involved in the

claims remaining before the trial court may overlap with the facts involved in the

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claims that have been dismissed,’” it must be explained to this Court how, “in a second

trial on the challenged claims, a second fact-finder might reach a result that cannot

be reconciled with the outcome of the first trial.” Doe, 273 N.C. App. at 21, 848 S.E.2d

at 10 (quoting Hamilton, 212 N.C. App. at 80-81, 711 S.E.2d at 191).

Plaintiff argues litigating their claims against Firebirds separately from the

claims against the remaining defendants could cause inconsistent verdicts because

different juries could reach different conclusions regarding the proximate cause of

Jamielle’s death. However, as this Court determined in Hamilton, even when an

appellant makes an argument that facts across claims may overlap, like Plaintiff has

done here, if there is a difference in the manner in which the “facts will be viewed

during the jury’s consideration of each class of claims,” it may not necessarily lead to

inconsistent verdicts if separate juries reach different factual conclusions on an

element of a claim. 212 N.C. App. at 83, 711 S.E.2d at 192. Here, Plaintiff has

asserted five negligence based claims for relief against nine of the eleven defendants

that are based on different theories of liability. Specifically, Plaintiff has asserted

claims for negligence, negligence per se, gross negligence, and gross negligence per se

under the theory of dram shop liability against Firebirds. Two of the other causes of

action against remaining defendants were brought under the theory of premises

liability, while the others were brought under ordinary negligence. Whether each

alleged negligent act by defendants is a proximate cause of Jamielle’s death will need

to be determined as to each claim “does not, standing alone, establish that separate

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consideration of these claims creates a risk of inconsistent verdicts given the

difference in the nature of the inquiry that must be conducted as part of the

evaluation of those claims.” Id. at 84, 711 S.E.2d at 193.

Next, we look to Plaintiff’s assertion that “conflicting outcomes would be

irreconcilable and undermine the fairness of the judicial process, along with plainly

prejudicing and harming the Estate.” We conclude Plaintiff has not met their burden

in explaining how “a second fact-finder might reach a result that cannot be reconciled

with the outcome of the first trial.” Doe, 273 N.C. App. at 21, 848 S.E.2d at 10. As

stated supra, an appellant has the burden to explain how they “will be prejudiced by

the possibility that inconsistent verdicts may result.” Greenbrier Place, 280 N.C. App.

at 147, 866 S.E.2d at 335 (quoting Nguyen, 200 N.C. App. at 391, 684 S.E.2d at 473).

Plaintiff’s argument regarding prejudice is conclusory and does not apply the specific

facts of the case at hand nor demonstrate how this case will be prejudiced by a risk of

inconsistent verdicts.

Consequently, Plaintiff has failed to meet their burden of advancing “sufficient

facts and arguments to support appellate review on the ground that the challenged

order affects a substantial right.” Denney, 264 N.C. App. at 17, 824 S.E.2d at 438

(2019) (quoting Larsen, 241 N.C. App. at 77, 772 S.E.2d at 95).

III. Conclusion

For the reasons stated herein, Plaintiff’s appeal is from an unappealable

interlocutory order. Thus, we dismiss the appeal for lack of appellate jurisdiction.

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DISMISSED.

Chief Judge DILLON and Judge TYSON concur.

Report per Rule 30(e).

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