{ "id": 5313291, "name": "FURMAN ANTHONY HOOTS and wife, PAULA HOOTS, Plaintiffs v. GARY PRYOR, CHAMPION INTERNATIONAL CORPORATION, a New York Corporation, and PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., a North Carolina Corporation, Defendants", "name_abbreviation": "Hoots v. Pryor", "decision_date": "1992-06-16", "docket_number": "No. 9129SC149", "first_page": "397", "last_page": "409", "citations": [ { "type": "official", "cite": "106 N.C. App. 397" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "410 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "summary judgment" } ], "opinion_index": 0 }, { "cite": "330 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2509606 ], "year": 1991, "pin_cites": [ { "parenthetical": "summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0439-01" ] }, { "cite": "401 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "summary judgment" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521936 ], "year": 1991, "pin_cites": [ { "parenthetical": "summary judgment" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0059-01" ] }, { "cite": "367 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516944 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0200-01" ] }, { "cite": "339 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "66" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519441 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0081-01" ] }, { "cite": "88 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "242 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615239 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/242/0370-01" ] }, { "cite": "267 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561700, 8561638, 8561752, 8561723, 8561662 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0374-03", "/nc/300/0374-01", "/nc/300/0374-05", "/nc/300/0374-04", "/nc/300/0374-02" ] }, { "cite": "263 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "317" }, { "page": "317" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549063 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "405-06" }, { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0400-01" ] }, { "cite": "77 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "706" } ], "opinion_index": 0 }, { "cite": "238 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601861 ], "year": 1953, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0162-01" ] }, { "cite": "98 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "87" } ], "opinion_index": 0 }, { "cite": "244 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219579 ], "year": 1956, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0242-01" ] }, { "cite": "9 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "411", "parenthetical": "a licensee is neither customer, servant nor trespasser and has no contractual relation with the owner but who is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience or gratification" } ], "opinion_index": 0 }, { "cite": "217 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617005 ], "year": 1940, "pin_cites": [ { "page": "735", "parenthetical": "a licensee is neither customer, servant nor trespasser and has no contractual relation with the owner but who is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience or gratification" } ], "opinion_index": 0, "case_paths": [ "/nc/217/0730-01" ] }, { "cite": "279 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 493", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574064 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0493-01" ] }, { "cite": "107 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618798 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0534-01" ] }, { "cite": "250 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566231 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0382-01" ] }, { "cite": "299 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557369 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0105-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "166", "parenthetical": "original emphasis" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "356 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121342 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0001-01" ] }, { "cite": "244 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "denial of motion to amend answer to assert a compulsory counterclaim affects a substantial right and is appealable" } ], "opinion_index": 0 }, { "cite": "294 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574468, 8574405, 8574446, 8574425, 8574490 ], "year": 1978, "pin_cites": [ { "parenthetical": "denial of motion to amend answer to assert a compulsory counterclaim affects a substantial right and is appealable" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0736-04", "/nc/294/0736-01", "/nc/294/0736-03", "/nc/294/0736-02", "/nc/294/0736-05" ] }, { "cite": "241 S.E.2d 119", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "denial of motion to amend answer to assert a compulsory counterclaim affects a substantial right and is appealable" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548279 ], "year": 1978, "pin_cites": [ { "parenthetical": "denial of motion to amend answer to assert a compulsory counterclaim affects a substantial right and is appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0231-01" ] }, { "cite": "387 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "where denial of motion to amend answer would effectively bar forever a claim for equitable distribution, it affects a substantial right and is appealable" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524355 ], "year": 1990, "pin_cites": [ { "parenthetical": "where denial of motion to amend answer would effectively bar forever a claim for equitable distribution, it affects a substantial right and is appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0670-01" ] }, { "cite": "132 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "parenthetical": "rulings on motions to amend are not res judicata unless they involve a substantial right" } ], "opinion_index": 0 }, { "cite": "260 N.C. 139", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573336 ], "year": 1963, "pin_cites": [ { "parenthetical": "rulings on motions to amend are not res judicata unless they involve a substantial right" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0139-01" ] }, { "cite": "296 S.E.2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "appeal from denial of motion to amend answer is interlocutory and not immediately appealable unless it affects a substantial right" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526465 ], "year": 1982, "pin_cites": [ { "parenthetical": "appeal from denial of motion to amend answer is interlocutory and not immediately appealable unless it affects a substantial right" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0351-01" ] }, { "cite": "189 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488", "parenthetical": "denial of motion to amend answer" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501", "parenthetical": "denial of motion to amend answer" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] }, { "cite": "388 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2490019, 2491402, 2488216, 2490871, 2488856 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0705-01", "/nc/325/0705-05", "/nc/325/0705-04", "/nc/325/0705-02", "/nc/325/0705-03" ] }, { "cite": "382 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 397", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521049 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0397-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "595" }, { "page": "596" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "606" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "362 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357716 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/88/0001-01" ] }, { "cite": "240 S.E.2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "408", "parenthetical": "quoting Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)" } ], "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "pin_cites": [ { "page": "439", "parenthetical": "quoting Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "381 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "376 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "490" }, { "page": "491" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527773 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "24" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0020-01" ] }, { "cite": "109 S.E. 257", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "182 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656220 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/182/0437-01" ] }, { "cite": "406 S.E.2d 848", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "granting of summary judgment in favor of one defendant does not finally determine all the claims in the case and is thus an interlocutory order" } ], "opinion_index": 0 }, { "cite": "329 N.C. 488", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557153 ], "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "granting of summary judgment in favor of one defendant does not finally determine all the claims in the case and is thus an interlocutory order" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0488-01" ] }, { "cite": "59 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "year": 1950, "opinion_index": 0 }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 1031, "char_count": 28211, "ocr_confidence": 0.772, "pagerank": { "raw": 6.375051826907026e-07, "percentile": 0.9591234855777306 }, "sha256": "246cd91b362370ad00eca3c695ca164fcb0a5fbaea4c76575c0f1e00dfa74bf2", "simhash": "1:31a1476a256dae52", "word_count": 4711 }, "last_updated": "2023-07-14T19:35:11.401464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and ORR concur." ], "parties": [ "FURMAN ANTHONY HOOTS and wife, PAULA HOOTS, Plaintiffs v. GARY PRYOR, CHAMPION INTERNATIONAL CORPORATION, a New York Corporation, and PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., a North Carolina Corporation, Defendants" ], "opinions": [ { "text": "JOHNSON, Judge.\nThis case arises from a motor vehicle accident which occurred when defendant Pryor attempted to drive his four-wheel drive vehicle along a cleared strip beside a gas pipeline ditch dug by defendant Public Service Company of North Carolina, Inc. (Gas Company). Plaintiff Hoots was a passenger in the vehicle and was seriously injured when the vehicle overturned on the steep uneven ground, trapping plaintiff underneath it. The land on which the accident occurred was owned by defendant Champion International Corporation (Champion). The excavation ditch and the cleared strip beside it were located on an easement sold by Champion to Gas Company for the purpose of the construction of a gas pipeline. The accident site was not far from other land, also owned by Champion, which was leased to the N.C. Department of Natural Resources and Community Development for use by the public.\nPlaintiffs brought suit against defendant Pryor on 25 May 1989 and on 28 August 1990 amended their complaint to join defendants Champion and Gas Company. Defendants Champion and Gas Company filed motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Judge Owens, on 26 November 1990, in open court, allowed defendants\u2019 Rule 12(b)(6) motions and dismissed plaintiffs\u2019 claims as to them. On 28 November 1990, plaintiffs filed a motion for leave to amend their complaint as to defendants Gas Company and Champion. On 3 December 1990, Judge Owens signed an order granting the Rule 12(b)(6) motions as to each corporate defendant. This order was filed at 11:21 a.m. The dismissal did not affect plaintiffs\u2019 negligence claim against defendant Pryor, which remains. Later that same day (3 December 1990), plaintiffs\u2019 motion to amend was heard by Judge Washington who denied the motion, concluding, as a matter of law, that the dismissal of plaintiffs\u2019 complaint by Judge Owens had operated as an adjudication on the merits.\nPlaintiffs appeal from Judge Owens\u2019 order granting defendants Champion and Gas Corporation\u2019s motion to dismiss and from Judge Washington\u2019s order denying plaintiffs\u2019 motion to amend their complaint.\nI.\nPlaintiffs appeal from two different orders. Initially, we must decide whether these appeals are interlocutory and should be dismissed.\nThe Appeal from the Rule 12(b)(6) Dismissals.\nChampion and Gas Company argue that plaintiffs\u2019 appeal from the order granting their Rule 12(b)(6) motions is interlocutory and thus should be dismissed.\nA judgment of a trial court is either interlocutory or is a final determination of the rights of the parties. G.S. \u00a7 1A-1, Rule 54(a) (1990). Interlocutory orders are those made during the pendency of an action which do not dispose of the case but leave it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950); Cook v. Bankers Life and Casualty Co., 329 N.C. 488, 406 S.E.2d 848 (1991) (granting of summary judgment in favor of one defendant does not finally determine all the claims in the case and is thus an interlocutory order). Interlocutory orders are normally not appealable. See Veazey, 231 N.C. 357, 57 S.E.2d 377. An appeal from a nonappealable interlocutory order is fragmentary and premature and will be dismissed. Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257 (1921). But under certain circumstances, an appeal of right lies from an interlocutory order and such appeal will not be dismissed. G.S. \u00a7 1A-1, Rule 54(b); G.S. \u00a7\u00a7 1-277 (1983) and 7A-27(d) (1989).\nJudge Owens\u2019 order dismissing plaintiffs\u2019 claims against Champion and Gas Company is an interlocutory order since it was made during the pendency of the action and it does not dispose of the case but leaves plaintiffs\u2019 negligence claim against defendant Pryor. Even though interlocutory, plaintiffs\u2019 appeal of Judge Owens\u2019 order will not be dismissed if either of two means of appealing interlocutory judgments applies. See Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 376 S.E.2d 488, disc, review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).\nUnder G.S. \u00a7 1A-1, Rule 54(b), when multiple parties are involved in an action, the court may enter a final judgment as to one or more but fewer than all of the parties. Such a judgment, though interlocutory for appeal purposes, shall then be subject to review if the trial judge certifies that there is no just reason for delay. Davidson, 93 N.C. App. at 24, 376 S.E.2d at 490. Here, the dismissal of defendants upon their Rule 12(b)(6) motions operates as a final judgment as to the cause of action against them but there is no certification in the dismissal order as to delay as required by Rule 54(b), thus there is no right of appeal under Rule 54(b).\nEven though an interlocutory order cannot be appealed under Rule 54(b), an appeal is allowed if the provisions of G.S. \u00a7\u00a7 l-277(a) and 7A-27(d) apply. Under these statutes, an appeal of right lies from an interlocutory order which prejudices \u201ca substantial right.\u201d Whether or not a substantial right will be prejudiced by delaying an interlocutory appeal must be decided on a case by case basis. \u201cIt 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 the appeal is sought is entered.\u201d Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982) (quoting Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)). The determination of appealability under the substantial right exception is a two step process. See J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 362 S.E.2d 812 (1987). First, there must be a \u201csubstantial right\u201d and second, \u201cthe enforcement of the substantial right must be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order.\u201d Id. at 6, 362 S.E.2d at 815.\nIn Green v. Duke Power Co., 305 N.C. 603, 290 S.E.2d 593 (1982) our Supreme Court stated that \u201cthe right to avoid the possibility of two trials on the same issues can be such a substantial right.\u201d Green, 305 N.C. at 606, 290 S.E.2d at 595. As explained in Davidson,\nThis general proposition is based on the following rationale: when common fact issues overlap the claim appealed and any remaining claims, delaying the appeal until all claims have been adjudicated creates the possibility the appellant will undergo a second trial of the same fact issues if the appeal is eventually successful. This possibility in turn creat[es] the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.\u2019\nDavidson, 93 N.C. App. at 25, 376 S.E.2d at 491 (quoting Green, 305 N.C. at 608, 290 S.E.2d at 596); see also Cook, 329 N.C. 488, 406 S.E.2d 848.\nWe find that under the facts of this case, plaintiffs\u2019 appeal is reviewable under the substantial right exception because a dismissal now would raise the possibility of inconsistent verdicts in later proceedings. Plaintiffs\u2019 claims against defendant Pryor sound in negligence. Plaintiffs\u2019 claims against Gas Company and Champion are based on their interest in the land and their duty to warn of hazardous conditions on the land. Gas Company alleges that defendant Pryor\u2019s actions constitute intervening negligence and that plaintiff Furman Hoots\u2019 conduct constitutes contributory negligence. It is conceivable that in a proceeding against defendant Pryor alone, the jury could find that plaintiff was contributorily negligent. If, in an appeal from that verdict, plaintiffs renew their appeal of the dismissal of defendants Gas Company and Champion and we were to find that the dismissal was improperly granted, then a second trial would be required as against these defendants. It is conceivable that at the second trial, plaintiff could be found not to have been contributorily negligent. See DeHaven v. Hoskins, 95 N.C. App. 397, 382 S.E.2d 856, disc, review denied, 325 N.C. 705, 388 S.E.2d 452 (1989).\nBecause of the possibility of inconsistent verdicts if this case were to be tried in two separate proceedings, we find that plaintiffs\u2019 appeal of Judge Owens\u2019 order is not premature and should not be dismissed.\nAppeal from the Denial of Motion to Amend.\nWe now consider whether plaintiffs\u2019 appeal from Judge Washington\u2019s order denying their motion to amend is properly before this Court.\nAn appeal from the denial of a motion to amend a pleading is ordinarily interlocutory and not immediately appealable. Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) (denial of motion to amend answer); Buchanan v. Rose, 59 N.C. App. 351, 296 S.E.2d 508 (1982) (appeal from denial of motion to amend answer is interlocutory and not immediately appealable unless it affects a substantial right); Overton v. Overton, 260 N.C. 139, 132 S.E.2d 349 (1963) (rulings on motions to amend are not res judicata unless they involve a substantial right). As with any other interlocutory order, if the order affects a substantial right which the appellant would lose if the order or ruling is not reviewed before final judgment, it is appealable. Goodwin v. Zeydel, 96 N.C. App. 670, 387 S.E.2d 57 (1990) (where denial of motion to amend answer would effectively bar forever a claim for equitable distribution, it affects a substantial right and is appealable); Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119, disc, review denied, 294 N.C. 736, 244 S.E.2d 154 (1978) (denial of motion to amend answer to assert a compulsory counterclaim affects a substantial right and is appealable).\nWe find that the order appealed from does not affect a substantial right and is interlocutory. However, the posture of this case is such that a determination of the correctness of Judge Washington\u2019s denial of plaintiffs\u2019 motion to amend is necessary to decide the appeal from the Rule 12(b)(6) dismissals, which we have found is properly before us. We therefore treat this appeal as a petition for certiorari and allow it. N.C.R. App. P. 21(a)(1).\nWe find that Judge Washington did not err in denying plaintiffs\u2019 motion to amend. In his order denying the motion, Judge Washington made the following findings of fact and conclusion of law. We paraphrase the determinative parts, except where a quote is indicated:\n1. A hearing was held on 26 November before Judge Owens on defendants\u2019 motions to dismiss for failure to state a claim.\n2. Attorneys for plaintiffs and defendants Champion and Gas Company were present.\n3. \u201cThat plaintiffs\u2019 attorney and attorneys for [Champion] and [Gas Company] stipulated that on November 26, 1990 in open court, after hearing arguments of counsel for the parties, Judge Owens granted the motions of [Champion] and [Gas Company] to dismiss plaintiffs\u2019 complaint[.]\u201d\n4. On 28 November plaintiffs filed a Notice of Motion and a Motion to Amend pursuant to Rule 15 with the clerk.\n7. The parties \u201cstipulated that on December 3, 1990 in open court the Order signed by Judge Owens and filed with the [clerk] on December 3, 1990 contained no modifications from the ruling of Judge Owens made in open court on November 26, 1990 granting the Motions of [defendants] pursuant to Rule 12(b)(6), and that the written Order of Judge Owens was in all respects the same as his oral Order entered in open court on November 26, 1990.\u201d\n\u201cUpon the Foregoing Findings of Fact, the Court concludes as a matter of law that dismissal of Plaintiffs\u2019 Complaint by Judge Owens as to [Champion] and [Gas Company] pursuant to Rule 12(b)(6) operates as an adjudication upon the merits and that Plaintiffs\u2019 Motion to Amend should be denied.\u201d\nJudge Washington\u2019s order, in paragraph 7, states that plaintiffs stipulated that Judge Owens granted defendants\u2019 motions to dismiss on 26 November and that the oral order was entered on that date. Plaintiffs do not object to Judge Washington\u2019s findings of fact. We are therefore bound by those findings and only need determine whether the conclusion of law is supported by the findings of fact. We hold that it is.\nA dismissal under Rule 12(b)(6) operates as an adjudication on the merits unless the court specifies that the dismissal is without prejudice. N.C.R. Civ. P. 41(b) (1990); Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987). In the case sub judice the trial judge did not so indicate and the dismissal is thus with prejudice. While a motion to dismiss under Rule 12(b)(6) does not terminate a party\u2019s unconditional right to amend pursuant to Rule 15(a), the entry of a dismissal under Rule 12(b)(6) does terminate that right. Id. at 7, 356 S.E.2d at 382 (citing federal cases).\nWe find that we need not decide whether the dismissal was \u201centered\u201d on 26 November with Judge Owens\u2019 oral grant of defendants\u2019 Rule 12(b)(6) motion or whether the dismissal was \u201centered\u201d on 3 December when he signed the order. Judge Washington found as a fact that plaintiffs had stipulated to the entry of dismissal on 26 November. Plaintiffs did not object to this finding of fact nor do they object now. Having stipulated that the order was entered on 26 November, plaintiffs will not now be heard to complain that the order was not \u201centered\u201d then, so as to make a case that their later motion to amend was timely.\nWe find that Judge Washington did not err in holding that the dismissal of plaintiffs\u2019 complaint on 26 November operated as an adjudication on the merits and that it terminated plaintiffs\u2019 right to amend their complaint. Therefore, our consideration of plaintiffs\u2019 appeal from the Rule 12(b)(6) dismissals must be based on the legal sufficiency of plaintiffs\u2019 amended complaint filed on 28 August 1990.\nII.\nWe now consider plaintiffs\u2019 appeal from the order granting defendants\u2019 motions to dismiss. Plaintiffs contend that the trial court erred in dismissing plaintiffs\u2019 claims against Gas Company and Champion for failure to state a claim upon which relief can be granted.\nA dismissal under Rule 12(b)(6) tests the legal sufficiency of the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). \u201c[A] complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.\u201d Id. at 103, 176 S.E.2d at 166 (original emphasis). In ruling on the motion, the allegations in the complaint must be viewed as admitted and the court must determine as a matter of law whether the allegations state a claim for which relief can be granted. Newton v. Standard Fire Ins. Co., 291 N.C. 105, 299 S.E.2d 297 (1976).\nThe Negligence Claim.\nPlaintiffs\u2019 first cause of action alleges negligent failure of defendants to warn of a hazardous condition. Plaintiffs\u2019 complaint alleges in pertinent part that defendant Champion is the owner and Gas Company is the easement holder of the land on which the accident occurred:\n8. The location of said accident was upon a portion of the [Gas Company\u2019s] easement in extremely steep mountainous terrain unfit for the operation of even four wheel vehicles and which portion of the easement was bereft of vegetation. The surface was loose uneven soil and rocks thereby constituting a dangerous, hazardous condition upon which motor vehicles should not have been permitted.\n9. Said conditions existed along a strip of terrain adjacent to [Gas Company\u2019s] excavation for installation of its gas transmitting pipe line and extended from a construction area on the northerly side of Big Hungry River at its intersection with the above described easement; thence in a cleared up-hill strip of soil from a public recreational access area and vehicular roadway approximately one-quarter (1/4) mile with a curve to the left to the place of occurrence.\n10. That [Champion] . . . leased the tract of land lying along the Big Hungry River to the North Carolina Department of Public Resources for a public sport fishing and recreational area.\n12. Champion and Gas Company had a duty to warn by appropriate signs, or in the alternative, to erect barricades to prevent access to the cleared strip of easement which Defendants knew ... or should have known, constituted a hazardous condition[.]\nThe standard of care of an owner or possessor of land owed to one who comes on the land depends upon whether the injured party is an invitee, a licensee or a trespasser. Initially, we must decide what status plaintiff Hoots has with regard to the land in question. Plaintiffs make no allegations in their complaint as to plaintiff Hoots\u2019 status, nor do they argue this point in their brief.\nAn invitee is one who goes upon the premises of another in response to an express or implied invitation by the landowner for the mutual benefit of the landowner and himself. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979); Hood v. Coach Co., 249 N.C. 534, 107 S.E.2d 154 (1959). Plaintiffs allege no facts which would give plaintiff Hoots the status of an invitee.\nA licensee is one who enters on the premises with the possessor\u2019s permission, express or implied, solely for his own purposes rather than for the possessor\u2019s benefit. Mazzacco v. Purcell, 303 N.C. 493, 279 S.E.2d 583 (1981); Pafford v. Const. Co., 217 N.C. 730, 735, 9 S.E.2d 408, 411 (1940) (a licensee is neither customer, servant nor trespasser and has no contractual relation with the owner but who is permitted, expressly or impliedly, to go thereon merely for his own interest, convenience or gratification). Plaintiffs do not allege that plaintiff Hoots had permission, express or implied, to go upon the land where the accident occurred. They do allege that the spot where the accident occurred is about one-quarter mile from a public recreational access area and roadway leased by Champion to the N.C. Department of Public Resources for a public sport fishing and recreational area; that Champion and Gas Company knew or should have known that vehicles frequented the public access and recreational area and that drivers had frequently attempted to drive up and down the cleared strip along the easement. These allegations are not sufficient to allege that plaintiff Hoots was a licensee at the spot where the accident occurred.\nA trespasser is one who enters the land of another without permission. We find that the complaint alleges facts that would make plaintiff Hoots no more than a trespasser on the land where the accident occurred. The duty owed to a trespasser is to refrain from willfully or wantonly injuring the trespasser. Jessup v. High Point, Thomasville and Denton Railroad, 244 N.C. 242, 245, 98 S.E.2d 84, 87 (1956).\nTo constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, or intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results.\nWagoner v. North Carolina Railroad Co., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953).\nWe find that plaintiffs\u2019 complaint fails to allege willful and wanton negligence on the part of either defendant. The most that plaintiffs allege is that a hazardous condition, consisting of loose uneven soil and rocks, existed on a strip of terrain adjacent to Gas Company\u2019s excavation. This was in an area of \u201cextremely steep, mountainous terrain unfit for the operation of even four wheel vehicles.\u201d Plaintiffs do not allege that either defendant actually created the hazardous condition or that it was a hidden condition. Plaintiffs do not allege any facts which would constitute willful or wanton negligence on the part of either defendant. This cause of action was properly dismissed.\nThe Third Party Beneficiary Claim.\nIn their second cause of action, plaintiffs allege that plaintiff Hoots is a third party beneficiary of a contract between Champion and Gas Company granting Gas Company the easement and requiring it to erect barriers to prevent motor vehicle access onto the easement. Plaintiffs allege a breach of that contract by Gas Company, either because Champion failed to designate the location of such barriers or because Gas Company failed to erect such barriers. Plaintiffs allege that plaintiff Hoots is a member of a class of persons intended to be benefited by the contract and that the breach by Gas Company resulted in the injury to him.\nWe find that plaintiffs have failed to allege sufficient facts to avoid a dismissal under Rule 12(b)(6).\nTo establish a claim based on the third party beneficiary contract doctrine, a complaint\u2019s allegations must show: (1) the existence of a contract between two other persons; (2) that the contract was valid and enforceable; (3) that the contract was entered into for his direct, and not incidental, benefit.\nLeasing Corp. v. Miller, 45 N.C. App. 400, 405-06, 263 S.E.2d 313, 317, disc, review denied, 300 N.C. 374, 267 S.E.2d 685 (1980), citing Trust Co. v. Processing Co., 242 N.C. 370, 88 S.E.2d 233 (1955). Complaints which fail to allege the required elements of the tort are subject to dismissal under Rule 12(b)(6). Raritan River Steel Co. v. Cherry, Bekaert & Holland, 79 N.C. App. 81, 339 S.E.2d 62 (1986), rev\u2019d on other grounds, 322 N.C. 200, 367 S.E.2d 609 (1988). See also Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C. App. 59, 401 S.E.2d 126, aff\u2019d, 330 N.C. 439, 410 S.E.2d 392 (1991) (summary judgment).\nPlaintiffs\u2019 complaint does not allege that the contract between Champion and Gas Company is valid and enforceable. \u201c[I]t omits the second of the \u2018essential allegations\u2019 and thus \u2018leaves to conjecture that which must be stated.\u2019 \u201d Raritan, 79 N.C. App. at 86, 339 S.E.2d at 66 (quoting Leasing Corp., 45 N.C. App. at 406, 263 S.E.2d at 317). Plaintiffs\u2019 second cause of action was properly dismissed on that account. Id. Plaintiffs have also failed to allege that they are the direct and not the incidental beneficiaries of the contract. Their allegation is found in paragraph 19 of the amended complaint.\n19. Plaintiff, Hoots, was a member of a class of persons, to wit: a passenger in a motor vehicle, which vehicle had invited access to the public access and recreational areas abutting, touching, and traversing the gas line easement granted to Gas Company by Champion. Said class was intended by the contracting parties to be benefited by said provisions for barriers and permanent structures as before set out.\nAn allegation that plaintiff is a member of a class of persons \u201cintended\u201d by the contracting parties to be benefited falls far short of alleging that the contract was entered into for the direct, not incidental, benefit of plaintiff. Dismissal was also properly entered on this basis.\nIn conclusion, we find that plaintiffs\u2019 complaint was properly dismissed for failure to state a claim upon which relief can be granted.\nAffirmed.\nJudges EAGLES and ORR concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Waymon L. Morris, P.A., by Waymon L. Morris, for plaintiffs-appellants.", "Roberts Stevens & Cogburn, P.A., by Steven D. Cogburn and W. O. Brazil, III, for defendant-appellee Champion International Corporation.", "Stott, Hollowell, Palmer & Windham, by Grady B. Stott and Martha R. Holmes, for defendant-appellee Public Service Company of North Carolina, Inc." ], "corrections": "", "head_matter": "FURMAN ANTHONY HOOTS and wife, PAULA HOOTS, Plaintiffs v. GARY PRYOR, CHAMPION INTERNATIONAL CORPORATION, a New York Corporation, and PUBLIC SERVICE COMPANY OF NORTH CAROLINA, INC., a North Carolina Corporation, Defendants\nNo. 9129SC149\n(Filed 16 June 1992)\n1. Appeal and Error \u00a7 114 (NCI4th)\u2014 12(b)(6) motion granted \u2014 appeal \u2014 interlocutory\u2014substantial right exception\nAn appeal from an order granting motions by two defendants to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) was interlocutory because it did not dispose of a claim against a third defendant, but was reviewable under the substantial right exception because a dismissal now would raise the possibility of inconsistent verdicts in later proceedings.\nAm Jur 2d, Appeal and Error \u00a7 62.\n2. Appeal and Error \u00a7 99 (NCI4th)\u2014 motion to amend pleadings denied \u2014appeal interlocutory \u2014 treated as petition for certiorari\nThe denial of a motion to amend pleadings did not affect a substantial right and was interlocutory; however, because a determination of the correctness of the denial of the motion to amend was necessary to decide the appeal from the 12(b)(6) dismissal, the appeal was treated as a motion for certiorari and allowed. N.C.R. App. P. 21(a)(1).\nAm Jur 2d, Appeal and Error \u00a7 62.\n3. Pleadings \u00a7 32 (NCI3d)\u2014 motion to amend denied \u201412(b)(6) dismissal previously granted \u2014no error\nThe trial court did not err by denying plaintiffs\u2019 motion to amend their complaint as to two of three defendants where another judge had previously granted a dismissal as to those two defendants under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). While a motion to dismiss under Rule 12(b)(6) does not terminate a party\u2019s unconditional right to amend pursuant to N.C.G.S. \u00a7 1A-1, Rule 15(a), the entry of a dismissal under Rule 12(b)(6) does terminate that right. The judge denying the motion to amend found as a fact that plaintiffs had stipulated to the entry of dismissal before the motion to amend and plaintiffs have not objected to that finding, so that it was not necessary to determine whether the dismissal was entered with the oral grant of the 12(b)(6) motion before the motion to amend.\nAm Jur 2d, Pleading \u00a7 317.\n4. Negligence \u00a7 47 (NCI3d) \u2014 4 wheel drive accident along pipeline excavation \u2014 trespasser\u201412(b)(6) dismissal\nThe trial court correctly granted a motion to dismiss under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) for defendants Champion and Gas Company where plaintiff Furman Hoots was injured when the four wheel drive vehicle in which he was riding overturned on steep, uneven ground on a cleared strip beside a gas pipeline excavation ditch located on an easement sold by Champion to Gas Company for construction of a gas pipeline. Allegations that the accident occurred about one-quarter mile from a public recreational access area and roadway leased by Champion to the State for a public sport fishing and recreational area and that Champion and Gas Company knew or should have known that vehicles frequented the public area and frequently attempted to drive up and down the cleared strip along the easement were not sufficient to allege that plaintiff Hoots was a licensee. Plaintiffs do not allege that either defendant actually created the hazardous condition or that it was a hidden condition, or any facts that would constitute willful or wanton negligence by either defendant.\nAm Jur 2d, Premises Liability \u00a7\u00a7 109, 163, 164, 166.\n5. Contracts \u00a7 116 (NCI4th)\u2014 third party beneficiary \u2014failure to allege that contract enforceable \u2014failure to allege direct beneficiary\nThe trial court correctly granted a dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) for defendants Champion and Gas Company in an action arising from an accident involving a four wheel drive vehicle on a gas pipeline easement where plaintiffs alleged that plaintiff Hoots was a third party beneficiary of a contract between Champion and Gas Company granting Gas Company the easement and requiring it to erect barriers to prevent motor vehicle access onto the easement. Plaintiffs did not allege that the contract was valid and enforceable and did not allege that plaintiffs were the direct and not the incidental beneficiaries of the contract.\nAm Jur 2d, Contracts \u00a7\u00a7 435, 449.\nAppeal by plaintiffs from order entered 3 December 1990 by Judge Hollis M. Owens, Jr., in HENDERSON County Superior Court and from order entered 3 December 1990 by Judge Edward K. Washington in HENDERSON County Superior Court. Heard in the Court of Appeals 12 November 1991.\nWaymon L. Morris, P.A., by Waymon L. Morris, for plaintiffs-appellants.\nRoberts Stevens & Cogburn, P.A., by Steven D. Cogburn and W. O. Brazil, III, for defendant-appellee Champion International Corporation.\nStott, Hollowell, Palmer & Windham, by Grady B. Stott and Martha R. Holmes, for defendant-appellee Public Service Company of North Carolina, Inc." }, "file_name": "0397-01", "first_page_order": 427, "last_page_order": 439 }