{ "id": 9496607, "name": "HENRY J. MURPHY, Plaintiff-appellee v. COASTAL PHYSICIAN GROUP, INC., Defendant-appellant", "name_abbreviation": "Murphy v. Coastal Physician Group, Inc.", "decision_date": "2000-08-01", "docket_number": "No. COA99-925", "first_page": "290", "last_page": "299", "citations": [ { "type": "official", "cite": "139 N.C. App. 290" } ], "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": "373 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "885-86" }, { "page": "886-87", "parenthetical": "relying on Green, Bemick and J & B Slurry'" }, { "page": "886" }, { "page": "886" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526720 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/92/0234-01" ] }, { "cite": "293 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "408-09" } ], "opinion_index": 0 }, { "cite": "306 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571111 ], "year": 1982, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0435-01" ] }, { "cite": "444 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "696", "parenthetical": "analyzing Oestreicher" }, { "page": "697" }, { "page": "697" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 423", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12131407 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "426", "parenthetical": "analyzing Oestreicher" }, { "page": "426-27" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0423-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "805" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "229 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "281", "parenthetical": "improperly blending these two concepts" } ], "opinion_index": 0 }, { "cite": "291 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557433 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0145-01" ] }, { "cite": "335 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 542", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689638, 4691496, 4697295, 4693043, 4689046 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0542-01", "/nc/314/0542-05", "/nc/314/0542-04", "/nc/314/0542-02", "/nc/314/0542-03" ] }, { "cite": "331 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1985, "pin_cites": [ { "page": "207" }, { "page": "208" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526387 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "582" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0579-01" ] }, { "cite": "1 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1938, "pin_cites": [ { "page": "536", "parenthetical": "where terms of contract are unambiguous, its meaning must be determined from the writing itself" } ], "opinion_index": 0 }, { "cite": "215 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628964 ], "year": 1938, "pin_cites": [ { "page": "225", "parenthetical": "where terms of contract are unambiguous, its meaning must be determined from the writing itself" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0223-01" ] }, { "cite": "378 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2486918, 2484074, 2483703, 2482808, 2486206 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0333-04", "/nc/324/0333-01", "/nc/324/0333-05", "/nc/324/0333-02", "/nc/324/0333-03" ] }, { "cite": "375 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527383 ], "year": 1989, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0571-01" ] }, { "cite": "182 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "279 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566398 ], "year": 1971, "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0192-01" ] }, { "cite": "423 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "452" } ], "opinion_index": 0 }, { "cite": "333 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546568 ], "year": 1992, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0001-01" ] }, { "cite": "80 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "650-51" } ], "opinion_index": 0 }, { "cite": "239 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627968 ], "year": 1954, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0595-01" ] }, { "cite": "301 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "732", "parenthetical": "as a party consents to bind itself, so shall it be bound" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523812 ], "year": 1983, "pin_cites": [ { "page": "705", "parenthetical": "as a party consents to bind itself, so shall it be bound" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0700-01" ] }, { "cite": "290 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "596" }, { "page": "595" } ], "opinion_index": 0 }, { "cite": "305 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572803 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "608" }, { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0603-01" ] }, { "cite": "362 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1987, "pin_cites": [ { "page": "816-17", "parenthetical": "providing thorough discussion emphasizing this condition and noting cases that erroneously omitted it" }, { "page": "816-17", "parenthetical": "emphasis in original" }, { "page": "816", "parenthetical": "analyzing the cases" }, { "page": "817" }, { "page": "817" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357716 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "6-9", "parenthetical": "providing thorough discussion emphasizing this condition and noting cases that erroneously omitted it" }, { "page": "8" }, { "page": "6-7" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1996, "opinion_index": 0 }, { "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": "492" }, { "page": "492" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 20", "category": "reporters:state", "reporter": "N.C. 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App. 20", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527773 ], "year": 1989, "pin_cites": [ { "page": "26" } ], "opinion_index": 1, "case_paths": [ "/nc-app/93/0020-01" ] } ], "analysis": { "cardinality": 1008, "char_count": 21510, "ocr_confidence": 0.741, "pagerank": { "raw": 2.387382453882059e-07, "percentile": 0.7974800847462535 }, "sha256": "cc587494088257b45d2187db2ae1da3c39264b16edbf497a27b80369c89ec502", "simhash": "1:03a0d46c501fbd66", "word_count": 3445 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EDMUNDS concurs.", "Judge GREENE dissents." ], "parties": [ "HENRY J. MURPHY, Plaintiff-appellee v. COASTAL PHYSICIAN GROUP, INC., Defendant-appellant" ], "opinions": [ { "text": "McGEE, Judge.\nHenry J. Murphy (Murphy) worked with the international accounting firm of Arthur Anderson LLP for thirty-six years, including twenty-four years as a partner, before he retired in March 1996. At the time Murphy retired, he was the partner in charge of corporate recovery, primarily working with bankrupt and otherwise insolvent or distressed corporations. Between 1995 and 1996, Coastal Physician Group, Inc. (Coastal) lost approximately $258.3 million in revenues according to Murphy, and Coastal\u2019s board of directors (the board) sought Murphy\u2019s guidance. Murphy accepted a position on Coastal\u2019s board of directors in October 1996. Less than one month later, Murphy was asked to join Coastal as its interim president and chief executive officer (CEO), which he accepted.\nMurphy and his attorney negotiated a fourteen-page employment agreement (the agreement) with Coastal\u2019s board of directors. The agreement, made effective on 1 November 1996, provided for an initial term of employment ending on 28 February 1997, which could be renewed. The agreement provided that Murphy \u201cshall manage and operate Company as President and Chief Executive Officer pursuant to the By-Laws of Company and in accordance with the contractual obligations of Company as they existed on the Employment Date.\u201d More specific duties were to select and employ senior management and professionals, furnish information to the board, and search for a permanent CEO. Murphy\u2019s compensation was to be a $30,000 monthly salary during the initial term, a $100,000 signing bonus, and a choice between either stock appreciation rights or any applicable fee bonus. A subparagraph defining a possible \u201cTransaction Fee\u201d payable to Murphy provides that\n[i]n the event Company consummates a Transaction (as herein defined) during the term of this Agreement or within six (6) months from the date of termination of this Agreement . . . Company shall pay, or cause to be paid, to Executive, at the time the Transaction is consummated, a payment equal to one-half of one percent (0.5%) of the fair market value of the acquisition price paid by the acquiring entity or entities in connection with the Transaction. As used herein, \u201cTransaction\u201d means any one or more transactions or series of transactions which are conditioned on each other or which occur or are planned or are committed to occur at substantially the same time and which, taken together result in either (i) merger or consolidation where Company is not the consolidated or surviving company or where the shareholders of Company prior to the merger or consolidation do not own a majority of the shares of the consolidated or merged company, (ii) a transfer of over fifty percent (50%) of the assets of Company, or (iii) a transfer or issuance of over fifty percent (50%) of the Common Stock of Company.\nMurphy filed a verified complaint against Coastal on 30 July 1997. Murphy contends that during his tenure as president and CEO he \u201cwas continually involved in negotiating the restructure of Coastal\u2019s debt with the company\u2019s existing bank lending institutions, and negotiating potential transactions between various financing sources and Coastal.\u201d He further contends that the board authorized him \u201cto be involved on an on-going basis in marketing Coastal\u2019s business assets for sale[,]\u201d whereby Murphy \u201cpursued practical and available avenues for restructuring, refinancing, selling or otherwise improving the cash flow position and resolving the cash flow crisis then existing at Coastal.\u201d\nMurphy alleges that during April, May and June 1997, Coastal \u201cconsummated a transaction\u201d with National Century Financial Enterprises, Inc. (National) in which National purchased all of Coastal\u2019s accounts receivable for an acquisition price of $151 million. The alleged transaction between Coastal and National occurred within six months of the agreement expiration date of 28 February 1997 and constituted \u201csignificantly more than fifty percent of Coastal\u2019s assets\u201d according to Murphy, thereby entitling him to a transaction fee of $755,000. On 25 April 1997, Murphy gave notice to Coastal of his election to receive the transaction fee. Coastal did not respond. Coastal denies that it sold $151 million of accounts receivable at the time of the transaction with National, or that the amount actually sold constituted fifty percent of its assets.\nAlong with his verified complaint, Murphy also filed a motion for attachment of funds in a bank account held by Coastal in an amount of $755,000. The trial court signed an order of attachment on 17 June 1997, but dissolved the attachment on 30 July 1997 upon motion by Coastal. On 31 July 1997, Coastal filed an amended answer and counterclaims asserting breach of contract, breach of fiduciary duty, negligence and wrongful attachment. The trial court granted partial summary judgment in favor of Murphy as to each of Coastal\u2019s counterclaims on 7 April 1999. Coastal appeals.\nMurphy filed a motion to dismiss Coastal\u2019s appeal as interlocutory on 25 August 1999, and Coastal filed a responsive motion on 22 December 1999. \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Because the trial court\u2019s order dismissed Coastal\u2019s counterclaims against Murphy but did not address the claims in Murphy\u2019s complaint, the order is interlocutory.\nGenerally, there is no right of immediate appeal from an interlocutory order. N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (1990); see also Veazey, 231 N.C. at 362, 57 S.E.2d at 381. The reason for this rule is \u201cto prevent fragmentary, premature and unnecessary appeals\u201d by permitting the trial court to bring the case to final judgment before it is presented to the appellate'courts. Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978). Indeed, \u201c[t]here is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.\u201d Veazey, 231 N.C. at 363, 57 S.E.2d at 382.\nThere are two circumstances, however, in which a party may appeal an interlocutory order. Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 24, 376 S.E.2d 488, 490, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989). The first requires certification by the trial judge that there is not just reason to delay the appeal. N.C.R. Civ. P. 54(b). The second is where the order appealed from (1) affects a substantial right, (2) in effect determines the action and prevents a judgment from which appeal might be taken, (3) discontinues the action, or (4) grants or denies a new trial. N.C. Gen. Stat. \u00a7\u00a7 1-277 (1996) and 7A-27(d) (1995). Coastal argues in favor of the latter exception, specifically that the trial court\u2019s order deprives Coastal of a substantial right. The substantial right must be lost, prejudiced, or less than adequately protected absent immediate review. See J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 6-9, 362 S.E.2d 812, 816-17 (1987) (providing thorough discussion emphasizing this condition and noting cases that erroneously omitted it).\nOur Courts have found a substantial right would be lost absent immediate review when the dismissed claims and the remaining claims are dependent upon the same set of facts or have \u201coverlapping factual issues,\u201d Davidson, 93 N.C. App. at 26, 376 S.E.2d at 492. If the appellant is not allowed to appeal the dismissal of a claim until after trial, and that dismissal is then found to have been in error, then the appellant could assert the claim again in a separate action. See Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). This would allow the appellant to potentially obtain a judicial result different from that obtained on the claims tried in the prior case, which shared the same factual issues, and this would be unfair to the other party. See id. By this reasoning, Coastal claims the issues in its counterclaims factually overlap the issues in Murphy\u2019s complaint, creating a substantial right that might be lost if Coastal is not allowed to immediately appeal the dismissal of its counterclaims.\nThe claim in Murphy\u2019s complaint is that Coastal consummated a transaction with National in an amount and at a time that entitled Murphy to a transaction fee pursuant to the clear provisions of the employment agreement. See McDowell v. McDowell, 61 N.C. App. 700, 705, 301 S.E.2d 729, 732 (1983) (as a party consents to bind itself, so shall it be bound). In order to prevail on this claim, Murphy must prove that a transaction occurred within six months of the day his employment ended, and that the transaction resulted in the transfer of more than fifty percent of Coastal\u2019s assets. The performance of his duties as an employee is irrelevant.\nCoastal\u2019s counterclaims are that Murphy wrongfully attached funds belonging to Coastal and during his employment acted in such a way as to make him liable for negligence, breach of contract, and breach of fiduciary duty. To prove wrongful attachment, Coastal must demonstrate among other facts, that Murphy did not have probable cause to believe he had grounds for attaching Coastal\u2019s property and did so maliciously. See Brown v. Estates Corp., 239 N.C. 595, 601, 80 S.E.2d 645, 650-51 (1954). To prevail on its claim for negligence, Coastal must prove Murphy breached a legal duty to Coastal which proximately caused injury. See Goodman v. Wenco Foods, Inc., 333 N.C. 1, 18, 423 S.E.2d 444, 452 (1992). As for breach of contract, Coastal must show Murphy failed to perform duties assigned to him under the employment agreement. See Gore v. Ball, Inc., 279 N.C. 192, 199, 182 S.E.2d 389, 393 (1971). Finally, Coastal must prove Murphy failed to act in the best interest of Coastal during his employment in order to prove a breach of fiduciary duty. See Bumgarner v. Tomblin, 92 N.C. App. 571, 576, 375 S.E.2d 520, 523, disc. review denied, 324 N.C. 333, 378 S.E.2d 789 (1989).\nIn Coastal\u2019s responsive motion, it proffers seven \u201coverlapping factual issues,\u201d see Davidson, 93 N.C. App. at 26, 376 S.E.2d 488 at 492, in its counterclaims and Murphy\u2019s claims: (1) issues arising out of Murphy\u2019s employment contract, (2) the parties\u2019 performance of their respective obligations under that contract, (3) the consummation of the National financing transaction, (4) the intention of the parties when entering into the employment agreement, (5) the extent to which the parties satisfied their contractual obligations, (6) Murphy\u2019s claim that he is entitled to a transaction fee, and (7) Coastal\u2019s claim that Murphy breached his contractual, fiduciary and common law obligations. Reviewing Murphy\u2019s claim for a transaction fee and Coastal\u2019s counterclaims, we find none of these issues to be dependent on the same set of facts or to have \u201coverlapping factual issues.\u201d\nThe first \u201coverlapping factual issue\u201d argued by Coastal does not identify any certain issue but rather the source of several issues. The second is relevant only to Coastal\u2019s counterclaims, and the third is relevant only to Murphy\u2019s claim. The fourth is irrelevant to Murphy\u2019s claim because the transaction fee language in the agreement is not ambiguous. See, e.g., Grocery Co. v. R.R., 215 N.C. 223, 225, 1 S.E.2d 535, 536 (1938) (where terms of contract are unambiguous, its meaning must be determined from the writing itself). The fifth issue is a restatement of the second, the sixth is relevant only to Murphy\u2019s claim, and the seventh is relevant only to Coastal\u2019s counterclaims.\nNevertheless, Coastal argues that Narron v. Hardee\u2019s Food Systems, Inc., 75 N.C. App. 579, 331 S.E.2d 205, disc. review denied, 314 N.C. 542, 335 S.E.2d 316 (1985) is \u201cmost analogous\u201d to the case before us and controls the determination of this case. In Narron, the defendant employer discovered that $3,500 was missing from the restaurant that was managed by the plaintiff, who was suspended for more than six months and then discharged for cause. The plaintiff had accumulated vacation pay under a personnel policy that did not expressly state he forfeited such pay upon discharge, as required by the Wage and Hour Act, to enforce such forfeiture. The policy, however, was discontinued during the month plaintiff was discharged and was replaced by a policy expressly stating that termination for cause would result in forfeiture of unused vacation pay. Narron, 75 N.C. App. at 582, 331 S.E.2d at 207. The plaintiff sued for his unused vacation pay under the Wage and Hour Act.\nIn its answer, the defendant argued it had complied with the Act, and then asserted a counterclaim for wrongful conversion of company funds or the negligent loss of such funds. The trial court entered summary judgment in favor of the defendant on the plaintiffs claim and stated in its order that the remaining counterclaim was unaffected by such ruling. The plaintiff appealed from the interlocutory summary judgment order, which our Court did not dismiss because \u201ca \u2018substantial right\u2019 of the plaintiff [was] affected[.]\u201d Narron, 75 N.C. App. at 581, 331 S.E.2d at 206 (citing Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976)). Our Court held that the trial court had erred in granting summary judgment because a genuine issue of material fact existed as to whether the plaintiff was due vacation pay earned under the earlier policy. Id. at 583, 331 S.E.2d at 208.\nNot only are there important factual distinctions between the present case and Narron, but also, without any discussion, Narron cited for support Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976), which \u201capparently merged two separate grounds for appealing interlocutory orders\u201d in stating that the summary judgment order \u201c \u2018in effect, determine[d] the claim [and] thus affect[ed] a substantial right[.]\u2019 \u201d J & B Slurry, 88 N.C. App. at 8, 362 S.E.2d at 816-17 (emphasis in original) (disapproving of the merging of independent grounds for appeal under G.S. \u00a7\u00a7 l-277(a) and 7A-27(d)). This suggests the Narron Court heard the appeal on the ground that the summary judgment in effect determined the plaintiffs claim, but used the term \u201csubstantial right\u201d to describe that separate ground.\nSecond, and more significant, the Nasco Court relied on the case of Oestreicher v. Stores, 290 N.C. 118, 225 S.E.2d 797 (1976). The Oestreicher Court determined that regardless of the nature of the issues involved, a plaintiff had a substantial right to have all his causes against the same defendant tried at the same time by the same judge and jury. See Oestreicher, 290 N.C. at 130, 225 S.E.2d at 805; see also Moose v. Nissan of Statesville, 115 N.C. App. 423, 426, 444 S.E.2d 694, 696 (1994) (analyzing Oestreicher). However, two years later in Waters, 294 N.C. at 207, 240 S.E.2d at 343, our Supreme Court repeated the requirement that the right in question would be lost absent immediate review. See also Moose, 115 N.C. App. at 426-27, 444 S.E.2d at 697. The Court then rejected an appealability argument based solely on the Oestreicher right to determine all claims in the same proceeding, see Green, 305 N.C. at 606, 290 S.E.2d at 595, and reaffirmed that decision in Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408-09 (1982). See J & B Slurry, 88 N.C. App. at 6-7, 362 S.E.2d at 816 (analyzing the cases).\nOur Court in J & B Slurry recognized an \u201capparent doctrinal inconsistency concerning the requirements for appealing interlocutory orders [which] may produce irreconcilable results in cases which . . . include counterclaims.\u201d Id. at 8, 362 S.E.2d at 817. We added that \u201cthe Oestreicher/Nasco and Green/Bemick lines of authority produce opposite results\u201d and decided to \u201cadopt the latter decisions\u2019 longer established, and more recently affirmed, rationale].]\u201d Id. at 8-9, 362 S.E.2d at 817. Later in Moose, our Court stated that \u201cit is time to establish the requirements contained in Green as controlling in its redefining of Oestreicher [and its progeny].\u201d Moose, 115 N.C. App. at 427, 444 S.E.2d at 697. Therefore, we reject Coastal\u2019s argument relying on Narron.\nRather, we find support for our Court\u2019s determination in the present case in Tai Co. v. Market Square Limited Partnership, 92 N.C. App. 234, 373 S.E.2d 885 (1988), a case cited by Murphy in his motion. In Tai, the plaintiff sued the defendants for compensatory and punitive damages alleging breach of contract, wrongful interference with contract, fraud, conversion and unfair trade practices. The defendants who answered denied these claims and counterclaimed for attorney\u2019s fees, alleging the plaintiff\u2019s claims were frivolous, malicious and without merit. Tai, 92 N.C. App. at 234, 373 S.E.2d at 885-86. They also moved for summary judgment, which the trial court granted. The plaintiff appealed, and our Court held that the order granting summary judgment for the defendants was not appealable before the counterclaim for attorney\u2019s fees had been adjudicated by the trial court. Id. at 236-37, 373 S.E.2d at 886-87 (relying on Green, Bemick and J & B Slurry').\nOur sole question in Tai was whether the interlocutory order affected a substantial right, for we said clearly it did not \u201c[i]n effect determine[] the action[,]\u201d or satisfy any other statutory ground under N.C. Gen. Stat. \u00a7 7A-27(d) (1986). Id. at 235, 373 S.E.2d at 886. Compare Nasco, 291 N.C. at 148, 229 S.E.2d at 281 (improperly blending these two concepts). Our Court then noted that the substantial right \u201cmost often addressed is the right to avoid two separate trials on the same issues.\u201d T\u2019ai, 92 N.C. App. at 236, 373 S.E.2d at 886. \u201c \u2018[T]here is ordinarily no possibility of inconsistent verdicts or other lasting prejudice where trial of defendant\u2019s counterclaim before appeal will not determine any issues controlling the potential trial of plaintiffs claims after appeal.\u2019 \u201d Id. (citation omitted). By analogy to T\u2019ai, in which the plaintiff could not appeal the order of summary judgment until adjudication of the defendants\u2019 counterclaims, in this case Coastal may not appeal the order of partial summary judgment against its counterclaims until adjudication of Murphy\u2019s cause of action.\nWe find no overlapping factual issues between Murphy\u2019s complaint and Coastal\u2019s counterclaims, and we do not believe the order appealed from deprives Coastal of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. The trial court\u2019s order for partial summary judgment in favor of Murphy as to Coastal\u2019s four counterclaims is not excepted from the general rule that an interlocutory order is not immediately appeal-able, and therefore we grant Murphy\u2019s motion to dismiss Coastal\u2019s appeal.\nDismissed.\nJudge EDMUNDS concurs.\nJudge GREENE dissents.", "type": "majority", "author": "McGEE, Judge." }, { "text": "Judge Greene\ndissenting.\nThe law with respect to whether an interlocutory appeal affects a substantial right is best summarily stated as follows: \u201cso long as a claim has been finally determined, delaying the appeal of that final determination will ordinarily affect a substantial right if there are overlapping factual issues between the claim determined and any claims which have not yet been determined.\u201d Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 26, 376 S.E.2d 488, 492, disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).\nIn this case, the summary judgment finally determined Coastal\u2019s counterclaims. I also believe the complaint and counterclaims present \u201coverlapping factual issues\u201d in that the claims all revolve around the construction and performance of the 1 November 1996 \u201cEMPLOYMENT AGREEMENT\u201d (the Agreement). For example, the complaint sought and Murphy received an attachment of certain proceeds pursuant to the Agreement; whereas Coastal\u2019s answer asserts a counterclaim alleging the attachment of those proceeds was wrongful.\nAccordingly, Coastal\u2019s current appeal of the trial court\u2019s order granting Murphy\u2019s summary judgment motions, although interlocutory, affects a substantial right. I, therefore, would allow the appeal.\n. This order of attachment was subsequently dissolved.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "Kilpatrick Stockton LLP, by W. Mark Conger, for plaintiff-appellee.", "Moore & Van Allen, by Andrew B. Cohen, for defendant-appellant." ], "corrections": "", "head_matter": "HENRY J. MURPHY, Plaintiff-appellee v. COASTAL PHYSICIAN GROUP, INC., Defendant-appellant\nNo. COA99-925\n(Filed 1 August 2000)\nAppeal and Error\u2014 appealability \u2014 interlocutory order \u2014 no substantial right\nDefendant-employer\u2019s appeal from the trial court\u2019s grant of partial summary judgment in favor of plaintiff-employee as to each of defendant\u2019s counterclaims for breach of contract, breach of fiduciary duty, negligence, and wrongful attachment, is dismissed since: (1) it is an interlocutory order that does not address the claims in plaintiff\u2019s complaint regarding defendant\u2019s alleged consummation of a transaction with another company entitling plaintiff to a transaction fee under the employment agreement; (2) there are no overlapping factual issues; (3) the order has not been certified by the trial court; and (4) the order does not affect a substantial right.\nJudge Greene dissenting.\nAppeal by defendant from order entered 7 April 1999 by Judge E. Lynn Johnson in Durham County Superior Court. Heard in the Court of Appeals 25 April 2000.\nKilpatrick Stockton LLP, by W. Mark Conger, for plaintiff-appellee.\nMoore & Van Allen, by Andrew B. Cohen, for defendant-appellant." }, "file_name": "0290-01", "first_page_order": 322, "last_page_order": 331 }