{ "id": 2672837, "name": "ANDREA D. GREEN, by her Guardian ad Litem, KENNETH R. DOWNS, and HENRY FRANK GREEN, Plaintiffs v. DUKE POWER COMPANY, a North Carolina Corporation, Defendant and Third-Party Plaintiff v. HENRY THOMAS EANES and HOUSING AUTHORITY OF THE CITY OF CHARLOTTE, NORTH CAROLINA, Third-Party Defendants", "name_abbreviation": "Green v. Duke Power Co.", "decision_date": "1981-02-17", "docket_number": "No. 8026SC637", "first_page": "646", "last_page": "649", "citations": [ { "type": "official", "cite": "50 N.C. App. 646" } ], "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": "446 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179993 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0001-01" ] }, { "cite": "100 L.Ed. 1297", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1956, "pin_cites": [ { "page": "1306" } ], "opinion_index": 0 }, { "cite": "351 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1105215 ], "weight": 4, "year": 1956, "pin_cites": [ { "page": "435" }, { "page": "899-900" } ], "opinion_index": 0, "case_paths": [ "/us/351/0427-01" ] }, { "cite": "266 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "47 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548833 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0187-01" ] }, { "cite": "57 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "129 S.E. 2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "258 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562062 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/258/0639-01" ] }, { "cite": "233 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569784 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0369-01" ] }, { "cite": "225 S.E. 2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "813-14" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "273 S.E. 2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562211, 8562157, 8562127, 8562066, 8562100 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0092-05", "/nc/301/0092-04", "/nc/301/0092-03", "/nc/301/0092-01", "/nc/301/0092-02" ] }, { "cite": "265 S.E. 2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "246" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549625 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0162-01" ] }, { "cite": "270 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] } ], "analysis": { "cardinality": 518, "char_count": 9125, "ocr_confidence": 0.766, "pagerank": { "raw": 1.4777765735359686e-07, "percentile": 0.6604979672560061 }, "sha256": "d20c6281404cebdc67174fcaef3cbd4c43345ea931430cf0890c61116b5ebe35", "simhash": "1:bde9c14e558a0071", "word_count": 1507 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Martin (Robert M.) concur." ], "parties": [ "ANDREA D. GREEN, by her Guardian ad Litem, KENNETH R. DOWNS, and HENRY FRANK GREEN, Plaintiffs v. DUKE POWER COMPANY, a North Carolina Corporation, Defendant and Third-Party Plaintiff v. HENRY THOMAS EANES and HOUSING AUTHORITY OF THE CITY OF CHARLOTTE, NORTH CAROLINA, Third-Party Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nAlthough Eanes\u2019 and Authority\u2019s motions to dismiss Duke\u2019s appeal as interlocutory were denied by another panel of judges of this Court, and although this question was not argued by either party before this Court, we believe that the opinion of our Supreme Court in Bailey v. Gooding, 301 N.C. 205, 270 S.E. 2d 431 (1980) requires us to consider the question and to dismiss this appeal.\nIn Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240 (1980), appeal dismissed, 301 N.C. 92, 273 S.E. 2d 298 (1980), we discussed at length the certification requirement of G.S. 1 A-l, Rule 54(b). In that opinion, we recognized that the Rule 54(b) procedure establishes the trial court as the \u201cdispatcher\u201d of appeals to the appellate division. This vital role of the trial courts has been sanctioned and upheld by our Federal courts, interpreting the provisions of Federal Rule 54(b) from which our Rule was taken.\nFollowing our model in Leasing Corp., supra, at 170, 265 S.E. 2d at 246, we must first determine whether the entry of summary judgment in favor of the third-party defendants Eanes and Authority affects a substantial right of third-party plaintiff Duke, so as to by-pass the Rule 54(b) procedure through application of the provisions of G.S. 1-277 or 7A-27. We hold that no such substantial right has been affected in this case because by preserving its exception to the granting of the summary judgments, Duke has preserved its right to pursue its claims against the third-party defendants in the event of judgment for the plaintiffs against Duke.\nDuke asserts that it has a substantial right to have its claim for contribution against the third-party defendants tried before the same court and jury which tries plaintiffs\u2019 claims against it. In support of its argument, Duke cites Oestreicher v. Stores, 290 N.C. 118, 225 S.E. 2d 797 (1976) and Heath v. Board of Commissioners, 292 N.C. 369, 233 S.E. 2d 889 (1977). We believe both Oestreicher and Heath must be distinguished from the case subjudice. As Chief Justice Sharp succinctly pointed out in her concurrence in Oestreicher, that case involved but one claim for relief, which presented issues for compensatory and punitive damages. In agreeing that plaintiff was entitled to the substantial right of having these two issues tried before the same court and jury, Justice Sharp said: \u201cIn such a situation, however, multiple claims are not involved. \u2018[W]hen plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of Rule 54] does not apply.\u2019\u201d Oestreicher v. Stores, supra, at 145, 225 S.E. 2d at 813-14.\nHeath involved no interpretation of Rule 54(b). That Rule is not mentioned in the opinion. Heath dealt with the impact of the adoption of G.S. 1 A-l, Rule 14 on the time at which a cause of action for indemnification arises. While we find no argument with the Court\u2019s statements about the purposes of Rule 14 found in Heath, such statements are mere dicta vis a vis the Rule 54(b) issue in this case.\nFollowing the trial of plaintiffs\u2019 actions against Duke, if judgment is entered against it, it may then seek contribution from Eanes and the Authority as joint tort-feasors. G.S. 1B-1; Pearsall v. Power Co., 258 N.C. 639, 129 S.E. 2d 217 (1963). The entry of summary judgment in favor of Eanes and the Authority in this case did not have the effect of destroying, impairing, or seriously imperiling Duke\u2019s right to seek such contribution. See Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377 (1950). The avoidance of a separate trial on Duke\u2019s separate claims is not such a substantial right as would justify the by-passing of Rule 54(b) requirements which Duke seeks in this appeal. See Cook v. Tobacco Co., 47 N.C. App. 187, 266 S.E. 2d 754 (1980).\nNo substantial right being involved, and it being obvious that the judgments entered adjudicate fewer than all the claims or the rights and liabilities of all the parties, Rule 54(b), and the trial judge having refrained from and refused to certify this case for appeal, the appeal is interlocutory and must be dismissed. See Bailey v. Gooding, supra.\nThis appeal is\nDismissed.\nThe writ of supersedeas previously issued in this case is hereby\nDissolved.\nJudges Arnold and Martin (Robert M.) concur.\nSee Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 100 L.Ed. 1297, 76 S.Ct. 895 (1956), in which we find the following language:\nTo meet the demonstrated need for flexibility, the District Court is used as a \u201cdispatcher.\u201d It is permitted to determine, in the first instance, the appropriate time when each \"final decision\"upon \u201cone or more but less than all\u201d of the claims in a multiple claims action is ready for appeal. This arrangement already has lent welcome certainty to the appellate procedure. Its \u201cnegative effect\u201d has met with uniform approval.\n351 U.S. at 435, 100 L.Ed. at 1306, 76 S.Ct. at 899-900. This subject was again before the United States Supreme Court in Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 64 L.Ed. 2d 1, 100 S.Ct. 1460 (1980), where the Court reached a similar conclusion and quoted with approval pertinent language from Sears.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William E. Poe and Irvin W. Hankins III, for defendant and third-party plaintiff appellant Duke Power Company.", "Hedrick, Feerick, Eatman, Gardner & Kincheloe, by Hatcher Kincheloe, for third-party defendant appellee Eanes.", "Golding, Crews, Meekins, Gordon & Gray, by James P. Crews, for third-party defendant appellee Housing Authority of the City of Charlotte, North Carolina." ], "corrections": "", "head_matter": "ANDREA D. GREEN, by her Guardian ad Litem, KENNETH R. DOWNS, and HENRY FRANK GREEN, Plaintiffs v. DUKE POWER COMPANY, a North Carolina Corporation, Defendant and Third-Party Plaintiff v. HENRY THOMAS EANES and HOUSING AUTHORITY OF THE CITY OF CHARLOTTE, NORTH CAROLINA, Third-Party Defendants\nNo. 8026SC637\n(Filed 17 February 1981)\nAppeal and Error \u00a7 6.2\u2014 summary judgment for third party defendants \u2014 order interlocutory \u2014 no substantial right affected \u2014 order not appealable\nIn an action to recover damages for injuries received by plaintiff when she came into contact with the interior wiring of an electrical transformer where defendant sought contribution from third party defendants as joint tort-feasors, the trial court\u2019s order entering summary judgment for third party defendants adjudicated fewer than all the claims or rights and liabilities of all the parties, no substantial right of plaintiff was affected, and the trial judge refrained from and refused to certify the ease for appeal so that plaintiffs appeal was interlocutory and must be dismissed.\nAPPEAL by defendant and third-party plaintiff from Burroughs, Judge. Judgments entered 26 February 1980 and 5 March 1980 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 15 January 1981.\nPlaintiff Andrea Green (Andrea), a minor, and plaintiff Henry Frank Green, Andrea\u2019s father, brought suit against defendant Duke Power Company (Duke) to recover damages for injuries received by Andrea when she came into contact with the interior wiring of a ground level electrical transformer and to recover expenses for her subsequent medical treatment. Defendant Duke brought a third-party action against defendants Eanes and Housing Authority (Authority) seeking contribution from each of them as joint tort-feasors.\nAfter the pleadings were joined, the parties submitted and obtained responses to requests for admissions, interrogatories, and requests for production of documents. Defendants Eanes and Authority then moved for summary judgment. After a hearing, their motions were granted. In its judgments, the trial court did not certify (pursuant to G.S. 1 A-l, Rule 54) that there was no just reason for delay. Duke gave timely notice of appeal from these judgments on 21 February 1980.\nOn 27 March 1980, Duke moved the trial court for an order staying the trial of the case pending final resolution of Duke\u2019s appeal from the summary judgments. On 15 May 1980, Duke obtained an order extending time to serve their proposed record on appeal to 6 June 1980. On 30 May 1980, Duke filed a motion \u201cpursuant to Rule 54 of the Rules of Civil Procedure\u201d to amend the judgments for the third-party defendants to include a finding by the trial court that \u201cthere is no just reason for delay\u201d. On 5 June 1980, the trial court entered an order denying this motion and an order denying Duke\u2019s motion to stay the trial pending resolution of Duke\u2019s appeal.\nDuke\u2019s appeal was docketed in this Court on 30 June 1980. On 3 July 1980 and 7 July 1980 respectively, Eanes and Authority moved this Court to dismiss Duke\u2019s appeal as interlocutory. On 3 July 1980, Duke petitioned this Court for a writ of supersedeas to stay the trial of the action between plaintiffs and Duke, pending the determination of Duke\u2019s appeal from the judgments in favor of Eanes and Authority. On 17 July 1980, a panel of this Court entered orders denying Eanes\u2019 and Authority\u2019s motions to dismiss Duke\u2019s appeal and allowing Duke\u2019s petition for a writ of supersedeas.\nGrier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by William E. Poe and Irvin W. Hankins III, for defendant and third-party plaintiff appellant Duke Power Company.\nHedrick, Feerick, Eatman, Gardner & Kincheloe, by Hatcher Kincheloe, for third-party defendant appellee Eanes.\nGolding, Crews, Meekins, Gordon & Gray, by James P. Crews, for third-party defendant appellee Housing Authority of the City of Charlotte, North Carolina." }, "file_name": "0646-01", "first_page_order": 672, "last_page_order": 675 }