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Green v. Duke Power Co.

Filed: May 4, 1982.

ANDREA D. GREEN, BY HER GUARDIAN AD LITEM, KENNETH R. DOWNS, AND HENRY FRANK GREEN, PLAINTIFFS
v.
DUKE POWER COMPANY, A NORTH CAROLINA CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF V. HENRY THOMAS EANES AND HOUSING AUTHORITY OF THE CITY OF CHARLOTTE, NORTH CAROLINA, THIRD-PARTY DEFENDANTS



Appeal by third party plaintiff Duke Power Company from the decision of the Court of Appeals (Wells, J., with Arnold and Martin (R.M.), JJ., concurring) dismissing Duke's appeal from summary judgments entered by Burroughs, J., at the 11 February 1980 Schedule B Session of Mecklenburg Superior Court (in favor of third party defendant Housing Authority of the City of Charlotte) and at the 18 February 1980 Administrative Session of Mecklenburg Superior Court (in favor of third party defendant Henry Thomas Eanes). The case was argued in the Supreme Court as No. 78, Fall Term 1981.

Branch, Chief Justice. Justice Mitchell did not participate in the consideration or decision of this case.

Branch

I

The first issue before this Court is whether the Court of Appeals erred in dismissing appellant Duke Power's appeal of the summary judgment granted in favor of third party defendants

Eanes and Housing Authority. For the reasons stated below, we find no error.

Appellant's sole ground of appeal is the contention that the granting of third party defendants' motions for summary judgment affected a substantial right. Both G.S. 1-277 and G.S. 7A-27(d) provide for immediate appeal of a judicial order or determination that affects a substantial right. Duke insists that it had a substantial right to have its claim for contribution from Eanes and Housing Authority determined in the same proceeding in which Duke's liability to Green is determined. Cf. Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976).

As we noted in Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980), "[t]he 'substantial right' test for appealability is more easily stated than applied." See also Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978). One writer, in seeking to formulate a rule based on our decisions in these cases, has concluded:

The right to avoid one trial on the disputed issues is not normally a substantial right that would allow an interlocutory appeal, while the right to avoid the possibility of two trials on the same issues can be such a substantial right.

Survey of Developments in N.C. Law, 1978, 57 N.C.L. Rev. 827, 907-08 (1979); quoted with approval in, W. Shuford, N.C. Civil Practice & Procedure ยง 54-5 (2nd Ed. 1981). We adhere to our earlier statement that "[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal was sought is entered." Waters v. Personnel, Inc., 294 N.C. at 208, 240 S.E.2d at 343. However, we are of the opinion that the above statement constitutes, as the author suggests, only "a general proposition that in many circumstances should be helpful in analyzing the substantial right issue." Survey, supra, 57 N.C.L. Rev. at 907.

In instant case, the issue in the action for contribution is whether Eanes and Housing Authority violated a duty of care to plaintiff Green. The issue in the principal case is whether Duke independently violated a separate and unrelated duty of care to plaintiff. Plaintiff has advanced no allegations of joint or concurring

negligence. Thus, whether third party defendants are liable to plaintiff Green is in no way dependent upon the resolution of the issue of Duke's liability to Green. The resolution of these ultimate issues does not depend upon similar factual issues or similar proof.

We hold that no substantial right would be lost by Duke's inability to take an immediate appeal from the summary judgment against it. If Duke were to win in the principal action, Duke would have no right to appeal. G.S. 1-271 (only an aggrieved party may appeal). If Duke were to lose, its exception to the entry of summary ...


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