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  "name_abbreviation": "Powell v. Bulluck",
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    "judges": [
      "Judges TIMMONS-GOODSON and THOMAS concur."
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    "parties": [
      "EVELYN POWELL, MAMIE WHITEHEAD, McARTHUR KING, MOTHER\u2019S CARE AND INFANTS CENTER and MORNINGSTAR BAPTIST CHURCH, INC., Plaintiffs v. WALTER PHILLIP BULLUCK, VICKY LYNN BULLUCK, and HANOR COMPANY, INC., Defendants"
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      {
        "text": "WALKER, Judge.\nPrior to filing their original complaint, plaintiffs Evelyn Powell and Morningstar Baptist Church, Inc. (Morningstar) and Concerned Citizens of Edgecombe II (CCE II), a group of Morningstar residents joined to oppose the operation of industrial-sized hog farms in the Morningstar community, requested and participated in pre-litigation mediation concerning a hog farm nuisance dispute against defendants. The mediation did not resolve the dispute, and on 11 February 1999, the mediator certified an impasse. On 15 June 1999, plaintiffs Evelyn Powell, Morningstar and others, including CCE II, initiated a hog farm nuisance action against defendants.\nOn 14 June 2000, Superior Court Judge Russell Duke dismissed plaintiffs Powell and Morningstar without prejudice and dismissed CCE II with prejudice for failing to allege in its complaint that it had complied with pre-litigation mediation requirements. On 4 June 2001, plaintiffs including Powell and Morningstar filed the present farm nuisance action against defendants, who counterclaimed alleging malicious and false statements and intentional interference with contractual relations. Subsequently, defendants moved for costs and to dismiss plaintiffs pursuant to N.C.R. Civ. P. 12(c) for failing to initiate pre-litigation mediation. Plaintiffs then filed a motion to dismiss defendants\u2019 counterclaim and sought N.C.R. Civ. P. 11 sanctions against defendants for filing their counterclaim.\nAll motions were heard, and on 10 October 2001, the trial court entered an order allowing defendants\u2019 motion to dismiss plaintiffs Whitehead, King and Mother\u2019s Care and Infants Center (Mother\u2019s Care) and defendants\u2019 motion for costs. The trial court denied plaintiffs\u2019 motions for sanctions and to dismiss defendants\u2019 counterclaim. Plaintiffs appealed, alleging the trial court erred in dismissing plaintiffs Whitehead, King and Mother\u2019s Care, awarding costs to defendants and in denying their motions for sanctions and to dismiss defendants\u2019 counterclaim.\nFirst, we consider the trial court\u2019s dismissal of plaintiffs Whitehead, King and Mother\u2019s Care. We note that this issue is interlocutory, but in our discretion, we elect to treat plaintiffs\u2019 appeal on this issue as a petition for writ of certiorari as it affects the proper parties to the lawsuit. See N.C. Gen. Stat. \u00a7 7A-32(c) (2001); N.C.R. App. P. 21(a)(1); Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co., 141 N.C. App. 569, 574, 541 S.E.2d 157, 161 (2000).\nIn ruling on a motion for judgment on the pleadings, the trial court \u201cis to consider only the pleadings and any attached exhibits, which become part of the pleadings.\u201d Minor v. Minor, 70 N.C. App. 76, 78, 318 S.E.2d 865, 867 (1984); see N.C. Gen. Stat. \u00a7 1A-1, Rule 12(c) (2001). In a Rule 12(c) motion, \u201c[n]o evidence is to be heard, and the trial judge is not to consider statements of fact in the briefs of the parties or the testimony of allegations by the parties in different proceedings.\u201d Minor, 70 N.C. App. at 78, 318 S.E.2d at 867; see Cash v. State Farm Mut. Auto. Ins. Co., 137 N.C. App. 192, 202, 528 S.E.2d 372, 378 (2000). In reviewing a Rule 12(c) motion, the trial court must accept all material allegations in the complaint as true and accurate and consider them in the light most favorable to the non-moving party. Affordable Care, Inc. v. N.C. State Bd. of Dental Exam\u2019rs, 153 N.C. App. 527, 532, 571 S.E.2d 52, 57 (2002); Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413 (1995).\nPrior to initiating a farm nuisance action, a party is required to submit to pre-litigation mediation. N.C. Gen. Stat. \u00a7 7A-38.3(c) (2001). The purpose of this mandatory mediation is \u201cto facilitate . . . settlement. . . and to make civil litigation more economical, efficient, and satisfactory to litigants and the State.\u201d N.C. Gen. Stat. \u00a7 7A-38.1(a) (2001). If a party brings a farm nuisance action before \u201ca farm resident or any other party\u201d has initiated pre-litigation mediation, then that action \u201cshall, upon the motion of any party prior to trial, be dismissed without prejudice by the court.\u201d N.C. Gen. Stat. \u00a7 7A-38.3(c). Farm nuisance pre-litigation mediation is conducted pursuant to N.C. Gen. Stat. \u00a7 7A-38.1 which provides that parties \u201cshall attend the mediated settlement conference unless excused by rules of the Supreme Court or by order of the senior resident superior court judge.\u201d N.C. Gen. Stat. \u00a7 7A-38.1(f) (2001).\nSpecifically, all individual parties and counsel for each party must \u201cphysically attend until an agreement is reduced to writing and signed ... or an impasse has been declared.\u201d N.C.R. Super. Ct. Mediated Settlement Conf. Rule 4 (2002). However, the attendance requirement will be \u201cexcused or modified, including the allowance of that party\u2019s or person\u2019s participation without physical attendance . . . [b]y agreement of all parties and persons required to attend and the mediator. ...\u201d Id.\nHere, plaintiffs alleged in their complaint:\nOn April 29, 1997, Plaintiffs initiated pre-litigation mediation of a farm nuisance dispute. Plaintiffs have completed pre-litigation mediation as required by N.C. Gen. Stat. \u00a7 7A-38.3. See Attachment A to Complaint, Report of Mediator. Attorney Henry Gorham served as mediator for this farm nuisance pre-litigation mediation. The mediation impassed and Plaintiffs filed suit on August 27, 1999. The original complaint was dismissed without prejudice on June 14, 2000. By order of the Court, Plaintiffs were given one year from June 14, 2000 to re-file suit. Plaintiffs now re-file.\nThe pre-litigation mediation request was submitted by Powell, CCE II and Morningstar. The report of the mediator attached to plaintiffs\u2019 complaint indicated that pre-litigation mediation was conducted, and the report did not list any party as being absent.\nDefendants moved for judgment on the pleadings and for costs asserting plaintiffs Whitehead, King and Mother\u2019s Care should have been dismissed because the pleadings with attachments showed that they did not request pre-litigation mediation. After a hearing, the trial court dismissed the complaints of Whitehead, King and Mother\u2019s Care without prejudice and allowed defendants\u2019 motion for costs. Plaintiffs\u2019 motions to dismiss and for sanctions were denied.\nEven though the pre-litigation mediation request does not list the names of all of the plaintiffs, the action is not subject to dismissal as to those plaintiffs. The statute does not require that all interested parties, who may later become plaintiffs, join in the request for mediation. The statute providing for pre-litigation mediation specifically states that \u201ca farm resident or any other party\u201d may initiate mediation. N.C. Gen. Stat. \u00a7 7A-38.3.\nHere, the pleadings allege that plaintiffs participated in pre-litigation mediation, and the mediator\u2019s report does not list any party as being absent. Taking the pleadings with attachments in the light most favorable to the plaintiffs, we find that plaintiffs have satisfied the requirements for requesting and participating in pre-litigation mediation as required by our rules and statutes.\nNext, we consider defendants\u2019 argument to dismiss the appeal as interlocutory. Although the trial court allowed defendants\u2019 motion for costs and denied plaintiffs\u2019 motions for sanctions and to dismiss defendants\u2019 counterclaim, significant issues remain in this case. Also, the trial court did not certify this case as immediately appealable pursuant to N.C.R. Civ. R 54(b). Judgments and orders that are not a final determination of the entire controversy as to all parties are interlocutory. Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999). As a general rule, there is no right of immediate appeal from interlocutory orders. McCall v. McCall, 138 N.C. App. 706, 707, 531 S.E.2d 894, 895 (2000); See Veazy v. City of Durham, 231 N.C. 357, 57 S.E.2d 377 (1950). However, plaintiffs claim the trial court\u2019s orders are appealable because they affect a substantial right.\nAn order, though interlocutory, is immediately appealable if it affects a substantial right that would be lost, prejudiced or less than adequately protected if an immediate appeal were not allowed. N.C. Gen. Stat. \u00a7 1-277(a) (2001). The burden is on the appellant to show \u201c(1) the judgment affects a right that is substantial; and (2) the deprivation of that substantial right will potentially work injury to him if not corrected before appeal from final judgment.\u201d Collins v. Talley, 135 N.C. App. 758, 760, 522 S.E.2d 794, 796 (1999).\nThe denial of a motion to dismiss is not immediately appealable, without showing a substantial right is affected. Thompson v. Norfolk S. Ry. Co., 140 N.C. App. 115, 120-21, 535 S.E.2d 397, 401, (2000). Contrary to plaintiffs\u2019 contentions, a denial of their motion to dismiss defendants\u2019 counterclaim does not affect a substantial right entitling them to an immediate appeal. Id.\nFinally, \u201cunder uncomplicated circumstances,\u201d where a court directs a party to pay fees or costs, no substantial right is involved that would allow an immediate appeal, Frost v. Mazda Motor of America, Inc., 353 N.C. 188, 194, 540 S.E.2d 324, 328 (2000); see Cochran v. Cochran, 93 N.C. App. 574, 577, 378 S.E.2d 580, 582 (1989), and absent a showing that a substantial right is involved, an order refusing to impose sanctions is not immediately appealable, Ford Motor Credit Co. v. Dean, 148 N.C. App. 405, 560 S.E.2d 886 (2002); Routh v. Weaver, 67 N.C. App. 426, 428, 313 S.E.2d 793, 795 (1984).\nReversed in part and dismissed in part.\nJudges TIMMONS-GOODSON and THOMAS concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Land Loss Prevention Project, by Marcus Jimison and Pamela Thombs, for plaintiff s-appellants.",
      "Poyner & Spruill, LLP, by J. Nicholas Ellis; and Etheridge, Sykes, Britt & Hamlett, LLP, by Raymond M. Sykes, Jr., for defendants-appellees Walter Phillip Bulluck and Vicky Lynn Bulluck.",
      "Hunton & Williams, by Jason S. Thomas, for defendant-appellee Manor Company, Inc."
    ],
    "corrections": "",
    "head_matter": "EVELYN POWELL, MAMIE WHITEHEAD, McARTHUR KING, MOTHER\u2019S CARE AND INFANTS CENTER and MORNINGSTAR BAPTIST CHURCH, INC., Plaintiffs v. WALTER PHILLIP BULLUCK, VICKY LYNN BULLUCK, and HANOR COMPANY, INC., Defendants\nNo. COA02-29\n(Filed 31 December 2002)\n1. Nuisance\u2014 farm \u2014 pleadings\u2014mediation\nThe trial court erred by dismissing on the pleadings some of the parties in a hog farm nuisance action for not submitting to pre-trial mediation where the pre-litigation mediation request did not list all of the plaintiffs, but their pleadings alleged that they participated in the mediation and the mediator\u2019s report does not list any party as absent. Taking the pleadings with attachments in the light most favorable to plaintiffs, plaintiffs satisfied the requirements for requesting and participating in pre-litigation mediation. N.C.G.S. \u00a7 7A-38.3(c).\n2. Appeal and Error\u2014 appealability \u2014 denial of motion to dismiss counterclaim \u2014 costs\u2014refusal of sanctions\nAn appeal was dismissed in part as interlocutory because the denial of plaintiffs\u2019 motion to dismiss defendant\u2019s counterclaim did not affect a substantial right; no substantial right is involved that would allow an immediate appeal where, under uncomplicated circumstances, a court directs a party to pay fees or costs; and an order refusing to impose sanctions is not immediately appealable absent a showing that a substantial right is involved.\nAppeal by plaintiffs from judgment entered 12 October 2001 by Judge Frank R. Brown in Edgecombe County Superior Court. Heard in the Court of Appeals 9 October 2002.\nLand Loss Prevention Project, by Marcus Jimison and Pamela Thombs, for plaintiff s-appellants.\nPoyner & Spruill, LLP, by J. Nicholas Ellis; and Etheridge, Sykes, Britt & Hamlett, LLP, by Raymond M. Sykes, Jr., for defendants-appellees Walter Phillip Bulluck and Vicky Lynn Bulluck.\nHunton & Williams, by Jason S. Thomas, for defendant-appellee Manor Company, Inc."
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