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Parmley v. Barrow

Court of Appeals of North Carolina

June 6, 2017

GWENDOLYN PARMLEY, Individually and as ADMINISTRATRIX, ESTATE OF JOHN PARMLEY, JR., DECEASED, Plaintiff,
v.
EVERETT BARROW, JOHNATHAN BRENT FULCHER, B&J SEAFOOD CO., INC., B&J CONTRACTING, LLC, B&J SEAFOOD, LLC, B&J CONTRACTING, and B&J CONTRACTING, INC., Defendants.

          Heard in the Court of Appeals 1 May 2017.

         Appeal by Plaintiff from order entered 30 June 2016 by Judge Benjamin G. Alford in Pamlico County, No. 15 CVS 156 Superior Court.

          Couch & Associates, PC, by C. Destine A. Couch and Finesse G. Couch, for Plaintiff-Appellant.

          Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Kara V. Bordman, for Defendant-Appellees B&J Contracting, Inc. and B&J Contracting.

          Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Kenneth B. Rotenstreich, for Defendant-Appellees B&J Seafood, LLC, B&J Contracting, LLC, B&J Contracting, Inc. and B&J Contracting.

          Midkiff, Muncie & Ross, P.C., by William T. Kesler, Jr., for Defendant-Appellees Everett Barrow, Johnathan B. Fulcher, and B&J Seafood Co., Inc.

          Wheatly, Wheatly, Weeks, Lupton & Massie, P.A., by Stevenson L. Weeks, for Defendant-Appellees B&J Seafood, LLC, and B&J Contracting, LLC.

          Robert N. HUNTER, JR. Judge.

         Gwendolyn Parmley, individually and as Administratrix of the Estate of John Parmley, Jr., ("Plaintiff") appeals from the trial court's 30 June 2016 order granting partial summary judgment in favor of Defendants Johnathan Brent Fulcher, B&J Contracting, LLC, B&J Seafood, LLC, B&J Contracting and B&J Contracting, Inc. Subsequently Plaintiff voluntarily dismissed without prejudice her claims against remaining Defendants Everett Barrow and B&J Seafood, Inc., creating a final judgment and jurisdiction for her appeal. However, Plaintiff then filed a second lawsuit against the Defendants whom she dismissed voluntarily. In doing so, Plaintiff's appeal of the original lawsuit became interlocutory. We dismiss Plaintiff's appeal without prejudice, so should she decide to do so, Plaintiff may refile her appeal at the conclusion of her second lawsuit.

         I. Factual and Procedural Background

         The Plaintiff's forecast of evidence tends to show on 29 August 2014, John Parmley, Jr. ("Parmley") drove a "roll-back" commercial truck from Craven County, North Carolina, to Newport News, Virginia. Defendant B&J Contracting, Inc. owned the commercial truck. Parmley delivered a propeller to Wildcat Propellers in Chesapeake, Virginia, on his way to Newport News. On the same day, Defendant Everett Barrow ("Defendant Barrow"), an employee of Defendant B&J Seafood Co., Inc., drove a pickup truck for Defendant B&J Seafood Co., Inc., from New Bern, North Carolina to Newport News. Defendant Barrow met Parmley in Newport News where their job was to take possession of a scallop dredge, [1] and have a crane load it onto the commercial truck. Neither Defendant Barrow nor Parmley operated the crane.[2]After the crane lifted the dredge and placed it on the commercial truck, Parmley and Defendant Barrow strapped down the dredge. Parmley and Defendant Barrow decided Parmley would drive the pickup truck back to New Bern, and Defendant Barrow would drive the commercial truck with the dredge.

         Approximately five minutes after securing the dredge, Defendant Barrow began backing the commercial truck out of a gate. Defendant Barrow then "felt the [dredge] shift" and pulled over. Defendant Barrow waved for Parmley to also pull over. Parmley then exited the pickup truck and walked over to Defendant Barrow's truck. Defendant Barrow and Parmley walked around the truck to make sure all the straps were intact. Just as Defendant Barrow came around the truck and got beside Parmley, the dredge fell off the truck and pinned Parmley to the ground. The dredge crushed Parmley, and he died.

         On 30 April 2015, Parmley's wife, Gwendolyn Parmley, individually and as Administratix of Parmley's Estate, filed a wrongful death action and a survival claim against Defendants Barrow, Johnathan Brent Fulcher ("Defendant Fulcher"), [3] B&J Seafood Co., Inc., B&J Contracting, LLC, and B&J Seafood, LLC in Durham County Superior Court. On 28 September 2015, the parties, through a consent order, changed the venue to Pamlico County. On 18 November 2015, Plaintiff filed an amended complaint naming two additional Defendants, B&J Contracting and B&J Contracting, Inc. On 17 May 2016, Defendants Fulcher, B&J Contracting, LLC, B&J Seafood, LLC, B&J Contracting, and B&J Contracting, Inc. moved for partial summary judgment on the grounds they are not necessary and proper parties to this litigation and there is no genuine issue of material fact or law as to liability.

         On 27 June 2016, the trial court heard arguments for partial summary judgment. Defendants' counsel contended B&J Contracting and B&J Contracting, LLC are non-existing entities. Specifically, Defendants' counsel presented affidavits alleging B&J Contracting is not "an unincorporated association or partnership to the knowledge of the parties, " and B&J Contracting, Inc. is not an existing corporation. Defendants' counsel also presented evidence showing Defendant Fulcher dissolved B&J Seafood, LLC on 2 September 2010. Defendants' counsel asserted B&J Seafood Co., Inc., employed Barrow. Finally, Defendants' counsel argued Defendant Fulcher was in New ...


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