Clevenger v. Pride Trimble Corp.

386 S.E.2d 594, 96 N.C. App. 631, 1989 N.C. App. LEXIS 1103

• Court: Court of Appeals of North Carolina
• Decided: December 19, 1989
• Docket: No. 8920SC598
• Status: Published

Opinions

ARNOLD, Judge.

Although the issue was not raised by either party, we must initially determine whether plaintiff’s appeal is premature. Where summary judgment is allowed for fewer than all the defendants and the judgment does not contain a certification pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is “no just reason for delay,” a plaintiff’s appeal will be premature unless the order allowing summary judgment affects a substantial right. Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982). “The ‘substantial right’ test for appealability is more easily stated than applied.” Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980). The substantial right question in each case is usually resolved by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered. Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978).

Having considered the particular facts and circumstances in this case we hold that the order allowing summary judgment for fewer than all the defendants in the present case does not affect a substantial right. Accordingly, plaintiff’s appeal will be dismissed.

Dismissed.

Chief Judge HEDRICK concurs.

Judge Phillips dissents.