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Denney v. Wardson Construction, Inc.

Court of Appeals of North Carolina

February 19, 2019

ERIC DENNEY, and wife CHRISTINE DENNEY, Plaintiffs,
v.
WARDSON CONSTRUCTION, INC., and HEALTHY HOME INSULATION, LLC, Defendants.

          Heard in the Court of Appeals 16 January 2019.

          Appeal by defendant from order entered 14 February 2018 by Judge Vince Rozier in Wake County No. 17 CVS 1256 Superior Court.

          The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr., and L. Lamar Armstrong, III, for plaintiffs-appellees.

          George B. Currin, and Lewis & Roberts, PLLC, by Matthew D. Quinn, for defendant-appellant.

          DIETZ, JUDGE.

         Defendant Wardson Construction, Inc. appeals a partial summary judgment order rejecting some of Wardson's res judicata defenses. Wardson concedes that this appeal is interlocutory and, notably, does not assert on appeal that the trial court's partial rejection of its res judicata defense creates any actual risk of inconsistent verdicts-meaning a risk that separate fact-finders reach conflicting results on the same factual issues.

         Instead, relying on a handful of decade-old cases, Wardson contends that the denial of a res judicata defense is immediately appealable in every case as a matter of law. As explained below, this argument has been considered and rejected by this Court many times. As we recently reaffirmed, "invocation of res judicata does not automatically entitle a party to an interlocutory appeal of an order rejecting that defense." Smith v. Polsky, __ N.C.App. __, __, 796 S.E.2d 354, 359 (2017). For clarity, we once again hold that appellants in interlocutory appeals involving the defense of res judicata must show that the challenged order creates a risk of inconsistent verdicts or otherwise affects a substantial right based on the particular facts of the case. Because Wardson did not do so here, we dismiss this appeal for lack of appellate jurisdiction.

         Facts and Procedural History

         This dispute began after Eric Denney claimed that Wardson Construction and its subcontractor failed to properly install spray foam insulation during construction of Denney's home. In 2015, Denney sued Wardson and the subcontractor, asserting claims for breach of contract, fraudulent or negligent misrepresentation, and negligence. Defendants later moved for summary judgment on all claims. In 2016, the trial court granted partial summary judgment for Defendants, dismissing the fraud and negligence claims but permitting the breach of contract claim to proceed. Denney then voluntarily dismissed the suit.

         In 2017, Denney and his wife filed a new lawsuit, asserting claims for breach of express warranty, breach of implied warranty, breach of contract, unfair and deceptive trade practices, fraud, conversion, and unjust enrichment. Wardson moved for summary judgment, arguing that all claims in the new lawsuit, except the breach of contract claim, were barred by res judicata.

         The trial court again granted partial summary judgment, ruling that the fraud, conversion, and unjust enrichment claims were barred by res judicata, but permitting the remaining claims to proceed. Wardson timely appealed.

         Analysis

         "Ordinarily, this Court hears appeals only after entry of a final judgment that leaves nothing further to be done in the trial court." Crite v. Bussey, 239 N.C.App. 19, 20, 767 S.E.2d 434, 435 (2015). "The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Larsen v. Black Diamond French Truffles, Inc., 241 N.C.App. 74, 76, 772 S.E.2d 93, 95 (2015).

         There is a statutory exception to this general rule when the challenged order affects a substantial right. N.C. Gen. Stat. § 7A-27(b)(3)(a). To confer appellate jurisdiction in this circumstance, 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 ...


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