{ "id": 8414195, "name": "BRENDA ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants; CORY R. ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants", "name_abbreviation": "Robinson v. Gardner", "decision_date": "2005-01-04", "docket_number": "No. COA03-1477; No. COA03-1478", "first_page": "763", "last_page": "769", "citations": [ { "type": "official", "cite": "167 N.C. App. 763" } ], "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": "599 S.E.2d 422", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "426", "parenthetical": "\"substantial right\" affected when defendants raised defenses of res judi-cata and collateral estoppel based on a prior federal summary judgment decision rendered on the merits" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 587", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999320 ], "year": 2004, "pin_cites": [ { "page": "589-90", "parenthetical": "\"substantial right\" affected when defendants raised defenses of res judi-cata and collateral estoppel based on a prior federal summary judgment decision rendered on the merits" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0587-01" ] }, { "cite": "435 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "holding that the defense of res judicata gives rise to a \"substantial right\" only when there is a risk of two actual trials resulting in two different verdicts" } ], "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "pin_cites": [ { "parenthetical": "holding that the defense of res judicata gives rise to a \"substantial right\" only when there is a risk of two actual trials resulting in two different verdicts" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "430 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "692", "parenthetical": "holding that the defense of res judicata gives rise to a \"substantial right\" only when there is a risk of two actual trials resulting in two different verdicts" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525976 ], "year": 1993, "pin_cites": [ { "page": "536", "parenthetical": "holding that the defense of res judicata gives rise to a \"substantial right\" only when there is a risk of two actual trials resulting in two different verdicts" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0531-01" ] }, { "cite": "542 S.E.2d 207", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 352", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155847, 1155564, 1155892, 1155639, 1155705 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0352-03", "/nc/351/0352-02", "/nc/351/0352-05", "/nc/351/0352-01", "/nc/351/0352-04" ] }, { "cite": "519 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 159", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239532 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/135/0159-01" ] }, { "cite": "588 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "522" }, { "page": "497" }, { "page": "522" }, { "page": "497" }, { "page": "497" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 519", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958957 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0519-01" ] }, { "cite": "291 S.E.2d 141", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "305 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571503 ], "year": 1982, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0575-01" ] }, { "cite": "347 S.E.2d 369", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "317 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771766 ], "year": 1986, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0623-01" ] }, { "cite": "265 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "485", "parenthetical": "order setting aside involuntary dismissal not immediately appealable" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552598 ], "year": 1980, "pin_cites": [ { "page": "625", "parenthetical": "order setting aside involuntary dismissal not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0622-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "434", "parenthetical": "order setting aside default judgment not immediately appealable" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "210", "parenthetical": "order setting aside default judgment not immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "304 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "637", "parenthetical": "dismissing appeal of Rule 60(b) order setting aside judgment for surprise and excusable neglect" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525247 ], "year": 1983, "pin_cites": [ { "page": "388", "parenthetical": "dismissing appeal of Rule 60(b) order setting aside judgment for surprise and excusable neglect" } ], "opinion_index": 0, "case_paths": [ "/nc-app/63/0387-01" ] }, { "cite": "545 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11433839 ], "year": 2001, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0162-01" ] }, { "cite": "120 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "254 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627858 ], "year": 1961, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0680-01" ] } ], "analysis": { "cardinality": 687, "char_count": 14574, "ocr_confidence": 0.752, "pagerank": { "raw": 1.667509941851215e-07, "percentile": 0.6954050216827313 }, "sha256": "81080fd25db50a4ea1105b1159fb2c6df65b2a2d9d4444b694a1b2403f196b0c", "simhash": "1:0d20e0f10486d0de", "word_count": 2347 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEVINSON and THORNBURG concur.", "Judge THORNBURG concurred prior to 31 December 2004." ], "parties": [ "BRENDA ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants CORY R. ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nThis appeal arises from a traffic accident. Plaintiffs Brenda and Cory Robinson twice filed lawsuits and then voluntarily dismissed them without prejudice pursuant to Rule 41(a) of the Rules of Civil Procedure. When they filed suit a third time, defendants filed a motion to dismiss pursuant to the \u201ctwo-dismissal\u201d principle of Rule 41(a)(1). In response, the Robinsons moved, pursuant to Rule 60(b) of the Rules of Civil Procedure, to set aside one of the earlier voluntary dismissals. The trial court entered two orders with the first granting the Robinsons\u2019 motion to set aside the earlier voluntary dismissal, and the second denying defendants\u2019 motion to dismiss. Defendants have appealed from these two orders. Because this appeal is interlocutory and defendants have failed to identify a substantial right that will be lost without immediate review, we dismiss the appeal.\nFacts\nOn the afternoon of 13 February 2001, plaintiff Cory Robinson was driving a car with his wife, plaintiff Brenda Robinson, and his parents, Lawrence and Gloria Robinson, as passengers. When defendant Richard Gardner \u2014 driving a vehicle owned by his employer, defendant Pike Electric, Inc. \u2014 attempted to merge into traffic, he forced a car driven by Sharon Simmons across the center line and into a head-on collision with the Robinsons. Gloria Robinson and Sharon Simmons were killed in the collision, while Cory, Brenda, and Lawrence Robinson were injured.\nOn 31 October 2001, Cory and Brenda Robinson each filed a lawsuit naming Richard Gardner and Pike Electric, Inc. as co-defendants (\u201cthe 2001 lawsuits\u201d). The complaints alleged that Gardner was negligent in his driving and that Gardner\u2019s negligence was imputed to Pike under a theory of respondeat superior. On 29 August 2002, despite the pendency of their 2001 lawsuits, the Robinsons\u2019 attorney filed two new lawsuits against Gardner and Pike (\u201cthe 2002 lawsuits\u201d), repeating the prior allegations, but also adding claims of negligent entrustment, negligent hiring and retention, and negligent training and supervision.\nThe Robinsons\u2019 attorney, Robert Kamey, testified that on 6 September 2002, he received a letter from defendants\u2019 attorney stating that defendants intended to move to dismiss the 2002 lawsuits as duplicative. Karney testified that he replied by fax, noting that a mediation was scheduled for 11 September 2002, but agreeing to amend the 2001 lawsuits and dismiss the 2002 lawsuits if no settlement occurred.\nThe mediation on 11 September 2002 ended in an impasse. On 13 September 2002, the Robinsons\u2019 attorney voluntarily dismissed both the 2001 and 2002 lawsuits pursuant to Rule 41(a). Kamey testified that he instructed his secretary to prepare voluntary dismissals of the 2002 lawsuits for his signature, but that she instead prepared dismissals for both the 2001 and the 2002 lawsuits, which Kamey then signed. Copies of these dismissals were filed and mailed to defendants\u2019 attorney on 13 September 2002, a Friday.\nOn Monday, 16 September 2002, defendants\u2019 attorney served offers of judgment on the Robinsons\u2019 attorney. Plaintiff\u2019s attorney Karney testified that he subsequently sent a letter referencing the 2001 lawsuits and enclosing subpoenas he intended to serve in support of the 2001 lawsuits.\nOn 3 February 2003, the Robinsons\u2019 attorney filed new lawsuits against Gardner and Pike (\u201cthe 2003 lawsuits\u201d) that were virtually identical to the 2002 complaints. On 12 February 2003, defendants moved to dismiss the 2003 lawsuits. Defendants argued that the dismissal of the 2001 and 2002 complaints operated as a final adjudication on the merits and barred any further action on the same set of operative facts under the \u201ctwo-dismissal\u201d principle of Rule 41(a)(1). On 2 May 2003, the Robinsons filed an opposition to the motion to dismiss and a \u201cMotion for Relief from Judgment,\u201d pursuant to Rule 60(b), seeking to set aside the voluntary dismissal of the 2002 lawsuits. On 7 May 2003, Cory and Brenda Robinson filed affidavits in which they said that they had not given consent to dismiss with prejudice their negligent entrustment, negligent hiring and retention, and negligent supervision claims against Pike and that it was their understanding that these claims could be refiled.\nThe hearing on the parties\u2019 motions was scheduled for 15 May 2003. On the day before the hearing, the Robinsons filed the affidavit of their attorney, Robert Karney. At the hearing, the Honorable Jesse B. Caldwell, III, over defendants\u2019 objection, considered plaintiffs\u2019 Rule 60(b) motion prior to hearing defendants\u2019 motion to dismiss. During the course of the hearing, Judge Caldwell, again over defendants\u2019 objection, allowed Karney to present his oral testimony in support of the Rule 60(b) motion. Following the hearing, defendants filed two documents with the court entitled \u201cRebuttal to the Testimony of Robert A. Karney.\u201d In his subsequent orders, Judge Caldwell indicated that he did not consider these submissions before ruling.\nOn 28 May 2003, Judge Caldwell entered an order setting aside the voluntary dismissals of the 2001 lawsuits. Although the Robinsons\u2019 motion had requested that the 2002 dismissals be set aside, Judge Caldwell amended the motion to conform to the evidence presented and found (1) that the dismissals of the 2001 lawsuits were inadvertently and mistakenly filed by the Robinsons\u2019 attorney and (2) that neither the Robinsons nor the defendants had contemplated dismissal of the 2001 lawsuits. On 12 June 2003, Judge Caldwell filed an additional order denying defendants\u2019 motion to dismiss.\nDefendants filed notices of appeal on 17 June 2003 from both orders. Because the appeal in Cory Robinson\u2019s case and the appeal in Brenda Robinson\u2019s case involve identical issues and briefs, we have consolidated the appeals for purposes of hearing and filing our opinion. Plaintiffs have moved to dismiss these appeals as interlocutory.\nDiscussion\nDefendants contend on appeal that the trial court erred in granting the Robinsons\u2019 Rule 60 motion and in denying their motion to dismiss pursuant to Rule 41(a)(1). Both orders are interlocutory in that they do not \u201cdetermine the issues but direct[] some further proceeding preliminary to final decree.\u201d Greene v. Charlotte Chem. Labs., Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961). This Court must, as an initial matter, determine whether the appeal is properly before the Court.\nAn interlocutory order is immediately appealable in only two circumstances: (1) if the trial court has certified the case for appeal under Rule 54(b) of the Rules of Civil Procedure; and (2) \u201cwhen the challenged order affects a substantial right of the appellant that would be lost without immediate review.\u201d Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 261 (2001). Since Rule 54(b) certification (involving entry of judgment as to some, but not all, claims or parties) is inapplicable to this situation, defendants are entitled to appeal only if the trial court\u2019s orders affect a substantial right that would otherwise be lost without immediate review.\nOur courts have consistently held that appeals from orders allowing a Rule 60 motion \u201cmust be dismissed as interlocutory.\u201d Braun v. Grundman, 63 N.C. App. 387, 388, 304 S.E.2d 636, 637 (1983) (dismissing appeal of Rule 60(b) order setting aside judgment for surprise and excusable neglect). See also Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 434 (1980) (order setting aside default judgment not immediately appealable); Metcalf v. Palmer, 46 N.C. App. 622, 625, 265 S.E.2d 484, 485 (1980) (order setting aside involuntary dismissal not immediately appealable). Similarly, \u201c[a] ruling denying a motion to dismiss pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) is ordinarily a nonappealable interlocutory order.\u201d Bolton Corp. v. T. A. Loving Co., 317 N.C. 623, 629, 347 S.E.2d 369, 373 (1986).\nDefendants argue, however, that they are entitled to an immediate appeal under N.C. Gen. Stat. \u00a7 l-277(b) (2003), which provides: \u201cAny interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person ... of the defendant. . . .\u201d Our Supreme Court has, however, narrowly construed N.C. Gen. Stat. \u00a7 l-277(b), holding that \u201cthe right of immediate appeal of an adverse ruling as to jurisdiction over the person, under [N.C. Gen. Stat. \u00a7 l-277(b)], is limited to rulings on \u2018minimum contacts\u2019 questions, the subject matter of Rule 12(b)(2).\u201d Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982). Since the adverse rulings against defendants in this case are not based on \u201cminimum contacts,\u201d they do not give rise to an immediate appeal.\nDefendants next argue that operation of Rule 41(a)(1) creates a form of immunity that supports an interlocutory appeal. This Court rejected that contention in Allen v. Stone, 161 N.C. App. 519, 588 S.E.2d 495 (2003). In Allen, the plaintiff had twice filed and voluntarily dismissed lawsuits. When the plaintiff filed a third suit, the defendant filed a motion to dismiss on the grounds that Rule 41(a)(1) barred the third suit. The trial court denied the motion to dismiss, and the defendant appealed, arguing that \u201cthe Rule 41(a)(1) two-dismissal rule creates a \u2018right to be free from the burdens of litigation\u2019 giving rise to a \u2018conditional immunity from suit,\u2019 such that denial of a motion to dismiss grounded on Rule 41(a)(1) likewise affects a substantial right and is immediately appealable.\u201d Id. at 522, 588 S.E.2d at 497. This Court unambiguously stated: \u201cWe decline to adopt defendant\u2019s interpretation of Rule 41(a)(1) as creating a \u2018conditional immunity from suit.\u2019 \u201d Id. The Court then held: \u201c[W]e discern no substantial right that would be affected absent immediate appellate review. This Court has previously stated that avoidance of a trial, no matter how tedious or unnecessary, is not a substantial right entitling an appellant to immediate review.\u201d Id.\nDespite defendants\u2019 attempts to distinguish it, Allen controls. While defendants urge that the Allen Court did not consider whether the defense of res judicata, arising out of the two-dismissal rule, justified an immediate appeal, we disagree. In Allen, id. at 522, 588 S.E.2d at 497, the Court specifically relied upon Country Club of Johnston County, Inc. v. United States Fid. & Guar. Co., 135 N.C. App. 159, 519 S.E.2d 540 (1999), disc. review denied, 351 N.C. 352, 542 S.E.2d 207 (2000), in which this Court held that an order denying a motion based on the defense of res judicata gives rise to a \u201csubstantial right\u201d only when allowing the case to go forward without an appeal would present the possibility of inconsistent jury verdicts. Id. at 167, 519 S.E.2d at 546. When, however, the prior decision was a summary judgment order, there would be \u201cno possibility of inconsistent verdicts\u201d and no substantial right that could not be vindicated in an appeal from a final judgment. Id. See also Northwestern Fin. Group, Inc. v. County of Gaston, 110 N.C. App. 531, 536, 430 S.E.2d 689, 692, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993) (holding that the defense of res judicata gives rise to a \u201csubstantial right\u201d only when there is a risk of two actual trials resulting in two different verdicts). But see Williams v. City of Jacksonville Police Dep\u2019t, 165 N.C. App. 587, 589-90, 599 S.E.2d 422, 426 (2004) (\u201csubstantial right\u201d affected when defendants raised defenses of res judi-cata and collateral estoppel based on a prior federal summary judgment decision rendered on the merits).\nThe present appeal does not involve possible inconsistent jury verdicts or even an inconsistent decision on the merits since, as in Allen, there was only a voluntary dismissal that would \u2014 if not set aside \u2014 result in an adjudication on the merits only by operation of law. There has been no decision by any court or jury that could prove to be inconsistent with a future decision. Defendants do not seek to avoid inconsistent decisions; they seek to avoid any litigation at all. But, as this Court stressed in Allen, mere \u201cavoidance of a trial... is not a substantial right entitling an appellant to immediate review.\u201d Allen, 161 N.C. App. at 522, 588 S.E.2d at 497.\nDefendants have not demonstrated the existence of any substantial right that would qualify them for immediate appeal. Moreover, defendants have neither filed a petition for writ of certio-rari nor identified any reason that would warrant this Court\u2019s exercising its discretion to hear this appeal under Rule 21 of the Rules of Appellate Procedure. We, therefore, allow plaintiffs\u2019 motions to dismiss the appeals.\nDismissed.\nJudges LEVINSON and THORNBURG concur.\nJudge THORNBURG concurred prior to 31 December 2004.\n. Lawrence Robinson also filed a lawsuit on behalf of himself and his late wife\u2019s estate. This lawsuit was settled in December 2002 and avoided the procedural morass that gives rise to this appeal.\n. Rule 41(a)(1) provides that a voluntary dismissal \u201cis without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States, an action based on or including the same claim.\u201d", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Poyner & Spruill, L.L.P., by E. Fitzgerald, Parnell, III, and Cynthia V. McNeely; and Kamey, deBrun & Wilcox, by Robert A. Kamey, for plaintiffs-appellees.", "Hedrick, Eatman, Gardner & Kinchloe, L.L.P., by Allen C. Smith and Heather T. Twiddy, for defendants-appellants." ], "corrections": "", "head_matter": "BRENDA ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants CORY R. ROBINSON, Plaintiff v. RICHARD CURTIS GARDNER and PIKE ELECTRIC, INC., Defendants\nNo. COA03-1477\nNo. COA03-1478\n(Filed 4 January 2005)\nAppeal and Error\u2014 appealability \u2014 interlocutory orders \u2014 denial of motion to dismiss \u2014 setting aside voluntary dismissal\nDefendants\u2019 appeal was dismissed as premature where plaintiff filed two actions arising from an automobile accident; each was voluntarily dismissed; plaintiff filed a third; defendants moved to dismiss under N.C.G.S. \u00a7 1A-1, Rule 41(a)(1); plaintiff moved to set aside one of the earlier dismissals; and the court granted that motion and denied defendants\u2019 motion to dismiss. Defendants have not demonstrated the existence of a substantial right that would qualify them for an immediate appeal.\nAppeal by defendants from orders entered 28 May 2003 and 12 June 2003 by Judge Jesse B. Caldwell, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 August 2004.\nPoyner & Spruill, L.L.P., by E. Fitzgerald, Parnell, III, and Cynthia V. McNeely; and Kamey, deBrun & Wilcox, by Robert A. Kamey, for plaintiffs-appellees.\nHedrick, Eatman, Gardner & Kinchloe, L.L.P., by Allen C. Smith and Heather T. Twiddy, for defendants-appellants." }, "file_name": "0763-01", "first_page_order": 793, "last_page_order": 799 }