{
  "id": 4161445,
  "name": "JIM D. ATKINS; CAROL L. MANNING; PRESSLEY C. STUTTS, JR.; and JERRY WATTS, Plaintiffs v. CLAY PEEK; PEEK PERFORMANCE, INC.; PACIFICARE HEALTH PLAN ADMINISTRATORS, INC.; PACIFICARE LIFE AND HEALTH INSURANCE COMPANY; AND PACIFICARE INSURANCE COMPANY, Defendants; And CLAY PEEK and PEEK PERFORMANCE, INC., Defendants & Third-Party Plaintiffs v. CHARLIE LEWIS; NICHOLAS LEWIS; ZACHARY LEWIS, Individually and KINGDOM INSURANCE GROUP, LLC; and SHEP CUTLER, Individually; and CUTLER AND ASSOCIATES, INC., Third-Party Defendants",
  "name_abbreviation": "Atkins v. Peek",
  "decision_date": "2008-11-04",
  "docket_number": "No. COA07-1535",
  "first_page": "606",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T16:30:29.332614+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges TYSON and STROUD concur."
    ],
    "parties": [
      "JIM D. ATKINS; CAROL L. MANNING; PRESSLEY C. STUTTS, JR.; and JERRY WATTS, Plaintiffs v. CLAY PEEK; PEEK PERFORMANCE, INC.; PACIFICARE HEALTH PLAN ADMINISTRATORS, INC.; PACIFICARE LIFE AND HEALTH INSURANCE COMPANY; AND PACIFICARE INSURANCE COMPANY, Defendants; And CLAY PEEK and PEEK PERFORMANCE, INC., Defendants & Third-Party Plaintiffs v. CHARLIE LEWIS; NICHOLAS LEWIS; ZACHARY LEWIS, Individually and KINGDOM INSURANCE GROUP, LLC; and SHEP CUTLER, Individually; and CUTLER AND ASSOCIATES, INC., Third-Party Defendants"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nThis appeal arises from a dispute concerning agreements for the sale of certain insurance products. Defendants and third-party plaintiffs, Clay Peek and Peek Performance, Inc., (\u201cthird-party plaintiffs\u201d) appeal from an order dismissing their claims against third-party defendants, Charles Lewis, Zachary Lewis, Kingdom Insurance, LLC, Shep Cutler, and Cutler and Associates, Inc. (\u201cthird-party defendants\u201d) pursuant to Rules 12(b)(6) and 14(a) of the North Carolina Rules of Civil Procedure. We dismiss this appeal as interlocutory.\nThe relevant facts and procedural background are as follows: Defendants Pacificare Health Plan Adminsistrators, Inc., Pacificare Life & Health Insurance Co., and Pacificare Insurance Co. (collectively, \u201cPacificare\u201d) are Indiana corporations licensed to do business in North Carolina, with a portion of their business consisting of the recruitment of agents and the sale of Medicare insurance products. Third-party plaintiff Peek Performance, Inc. (\u201cPeek Performance\u201d) is a South Carolina corporation, with its principle business consisting of the recruitment of qualified and licensed insurance agents in North and South Carolina. Third-party plaintiff Clay Peek is an authorized agent of Peek Performance. Peek Performance contracted with Pacificare to recruit agents and sell and market Medicare insurance products in North Carolina and other states.\nOn 28 August 2006, four insurance agents licensed in North Carolina, Jim D. Atkins, Carol L. Manning, Pressley C. Stutts, Jr., and Jerry Watts (collectively, \u201coriginal plaintiffs\u201d), filed an action against third-party plaintiffs. In their complaint, original plaintiffs alleged that third-party plaintiffs recruited them to sell Pacificare\u2019s medicare insurance products within the State of North Carolina. Original plaintiffs alleged further that they entered contracts with third-party plaintiffs, and under such contracts, they were to be paid specified commissions for enrolling clients into Pacificare\u2019s Medicare Advantage plans. Thereafter, without original plaintiffs\u2019 consent or knowledge, third-party plaintiffs allegedly \u201cfraudulently assigned the commission payments due to [original plaintiffs] from [Pacificare] to [third-party plaintiffs]\u201d; altered the terms of the contracts such that original plaintiffs were designated as \u201csolicitors\u201d instead of \u201cgeneral agents,\u201d and wrongfully refused to release original plaintiffs from their contracts with third-party plaintiffs, which prevented original plaintiffs from obtaining employment elsewhere.\nBased on these allegations, original plaintiffs asserted six claims for relief against Pacificare and third-party plaintiffs including: (1) unfair and deceptive trade practices pursuant to N.C. Gen. Stat. \u00a7 75-1.1 (2007); (2) fraud and negligent misrepresentation; (3) breach of duty of good faith and fair dealing; (4) breach of contract; (5) quantum merit; and (6) unjust enrichment. None of these claims were asserted against third-party defendants.\nOn 27 October 2006, third-party plaintiffs asserted counterclaims against original plaintiffs and filed a third-party complaint against third-party defendants. In their complaint, third-party plaintiffs alleged, inter alia, that third-party defendants entered into and breached contracts with them by:\nfailing to deliver . . . computer software to assist in the payment of commissions, by attempting to raise the cost per preset appointment, by not providing quality preset appointments, or appropriate quantity of preset appointments, and in failing to reimburse for invalid preset appointments and by delaying the payment of commissions earned and due to Peek Performance, Inc.\nThird-party plaintiffs alleged that third-party defendants tortiously interfered with third-party plaintiffs\u2019 contracts by intentionally and with knowledge of existing agreements, inducing and encouraging various agents \u201cnot to perform for Peek Performance, Inc., not to renew with Peek Performance, Inc., and to seek termination .of their contracts with Peek Performance, Inc[.]\u201d Third-party plaintiffs also alleged that third-defendants slandered third-party plaintiffs, and through these actions, engaged in unfair and deceptive trade practices, in violation of N.C. Gen. Stat. \u00a7 75-1.1.\nOn 12 January 2007, third-party defendants moved to dismiss third-party plaintiffs\u2019 claims for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. \u00a7 1A-1, Rule 12 (2007). After a hearing on the matter, the trial court concluded that none of third-party plaintiffs\u2019 claims were \u201cdependent upon the success, failure or continued maintenance of\u2019 original plaintiffs\u2019 claims against third-party plaintiffs and that such claims \u201ccan be pursued irrespective of the continued pursuit of Plaintiff\u2019s original claim[.]\u201d As such, the trial court concluded that third-party plaintiffs\u2019 claims were improper under Rule 14 of the North Carolina Rules of Civil Procedure and that such claims fail to state a claim upon which relief may be granted. N.C. Gen. Stat. \u00a7 1A-1, Rules 12(b)(6) and 14(a) (2007). As such, .the trial court granted third-party defendants\u2019 motions and dismissed third-party plaintiffs\u2019 claims, without prejudice.\nThird-party plaintiffs appeal from the trial courts\u2019 order dismissing its claims. Third-party defendants contend that third-party plaintiffs\u2019 appeal is interlocutory and should be dismissed. We agree.\nWhere, as here, an order entered by the trial court does not dispose of the entire controversy between all parties, it is interlocutory. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). As a general rule, a party is not entitled to immediately appeal an interlocutory order. Id. However, there are two exceptions in which an appeal of right lies from an order that is interlocutory. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). The first exception applies where the order represents a \u201c \u2018final judgment as to one or more but fewer than all of the claims or parties\u2019 and the trial court certifies in the judgment that there is no just reason to delay the appeal.\u201d Id. (citation omitted); see N.C. Gen. Stat. 1A-1, Rule 54(b) (2007). Secondly, a party may appeal an interlocutory order where delaying the appeal will irreparably impair a substantial right of the party. Abe, 130 N.C. App. at 334, 502 S.E.2d at 881.\nNeither of the two exceptions are applicable to the case sub judice. First, the trial court did not certify the judgment for appeal pursuant to Rule 54(b). Second, we have held that avoidance of a separate trial on separate claims is not such a substantial right as would justify the by-passing of Rule 54(b) requirements. Green v. Duke Power Co., 50 N.C. App. 646, 649, 274 S.E.2d 889, 891 (1981), aff\u2019d, 305 N.C. 603, 290 S.E.2d 543 (1982). Since third-party plaintiffs\u2019 claims against third-party defendants involve separate and distinct issues from the claims asserted by original plaintiff and such claims were dismissed without prejudice and can be pursued in a separate trial, the order in this case does not deprive third-party plaintiff of a substantial right. As such, this appeal must be dismissed.\nDismissed.\nJudges TYSON and STROUD concur.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "Ross Law Firm, by R. Matthew Van Sickle and C. Thomas Ross, for defendants and third-party plaintiff appellants.",
      "Roberts & Stevens, RA., by Ann-Patton Nelson and James W. Williams; Of Counsel Locke Lord Bissell & Liddell, LLP, by Michael P. Bruyere and John F. Kane, for third-party defendant appellees."
    ],
    "corrections": "",
    "head_matter": "JIM D. ATKINS; CAROL L. MANNING; PRESSLEY C. STUTTS, JR.; and JERRY WATTS, Plaintiffs v. CLAY PEEK; PEEK PERFORMANCE, INC.; PACIFICARE HEALTH PLAN ADMINISTRATORS, INC.; PACIFICARE LIFE AND HEALTH INSURANCE COMPANY; AND PACIFICARE INSURANCE COMPANY, Defendants; And CLAY PEEK and PEEK PERFORMANCE, INC., Defendants & Third-Party Plaintiffs v. CHARLIE LEWIS; NICHOLAS LEWIS; ZACHARY LEWIS, Individually and KINGDOM INSURANCE GROUP, LLC; and SHEP CUTLER, Individually; and CUTLER AND ASSOCIATES, INC., Third-Party Defendants\nNo. COA07-1535\n(Filed 4 November 2008)\nAppeal and Error\u2014 appealability \u2014 dismissal of third-party claims \u2014 separate and distinct issues from original claims asserted\nThird-party plaintiffs\u2019 appeal from the trial courts\u2019 order dismissing its claims against third-party defendants arising from a dispute concerning agreements for the sale of certain insurance products was an appeal from an interlocutory order, and thus, dismissed because: (1) the trial court did not certify the judgment for appeal under N.C.G.S. \u00a7 1A-1, Rule 54(b); (2) avoidance of a separate trial on separate claims is not such a substantial right as would justify the bypassing of Rule 54(b) requirements; and (3) third-party plaintiffs\u2019 claims against third-party defendants involve separate and distinct issues from the claims asserted by original plaintiff, and such claims were dismissed without prejudice and can be pursued in a separate trial.\nAppeal by defendants and third-party plaintiffs from order entered 12 September 2007 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 15 May 2008.\nRoss Law Firm, by R. Matthew Van Sickle and C. Thomas Ross, for defendants and third-party plaintiff appellants.\nRoberts & Stevens, RA., by Ann-Patton Nelson and James W. Williams; Of Counsel Locke Lord Bissell & Liddell, LLP, by Michael P. Bruyere and John F. Kane, for third-party defendant appellees."
  },
  "file_name": "0606-01",
  "first_page_order": 638,
  "last_page_order": 641
}