              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1258

                                 Filed: 6 June 2017

Pamlico County, No. 15 CVS 156

GWENDOLYN PARMLEY, Individually and as ADMINISTRATRIX, ESTATE OF
JOHN PARMLEY, JR., DECEASED, Plaintiff,

             v.

EVERETT BARROW, JOHNATHAN BRENT FULCHER, B&J SEAFOOD CO.,
INC., B&J CONTRACTING, LLC, B&J SEAFOOD, LLC, B&J CONTRACTING, and
B&J CONTRACTING, INC., Defendants.


      Appeal by Plaintiff from order entered 30 June 2016 by Judge Benjamin G.

Alford in Pamlico County Superior Court. Heard in the Court of Appeals 1 May 2017.


      Couch & Associates, PC, by C. Destine A. Couch and Finesse G. Couch, for
      Plaintiff-Appellant.

      Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Kara V. Bordman, for
      Defendant-Appellees B&J Contracting, Inc. and B&J Contracting.

      Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Kenneth B.
      Rotenstreich, for Defendant-Appellees B&J Seafood, LLC, B&J Contracting,
      LLC, B&J Contracting, Inc. and B&J Contracting.

      Midkiff, Muncie & Ross, P.C., by William T. Kesler, Jr., for Defendant-
      Appellees Everett Barrow, Johnathan B. Fulcher, and B&J Seafood Co., Inc.

      Wheatly, Wheatly, Weeks, Lupton & Massie, P.A., by Stevenson L. Weeks, for
      Defendant-Appellees B&J Seafood, LLC, and B&J Contracting, LLC.

      HUNTER, JR., Robert N., Judge.


      Gwendolyn Parmley, individually and as Administratrix of the Estate of John

Parmley, Jr., (“Plaintiff”) appeals from the trial court’s 30 June 2016 order granting
                                 PARMLEY V. BARROW

                                   Opinion of the Court



partial summary judgment in favor of Defendants Johnathan Brent Fulcher, B&J

Contracting, LLC, B&J Seafood, LLC, B&J Contracting and B&J Contracting, Inc.

Subsequently Plaintiff voluntarily dismissed without prejudice her claims against

remaining Defendants Everett Barrow and B&J Seafood, Inc., creating a final

judgment and jurisdiction for her appeal. However, Plaintiff then filed a second

lawsuit against the Defendants whom she dismissed voluntarily.            In doing so,

Plaintiff’s appeal of the original lawsuit became interlocutory. We dismiss Plaintiff’s

appeal without prejudice, so should she decide to do so, Plaintiff may refile her appeal

at the conclusion of her second lawsuit.

                        I. Factual and Procedural Background

      The Plaintiff’s forecast of evidence tends to show on 29 August 2014, John

Parmley, Jr. (“Parmley”) drove a “roll-back” commercial truck from Craven County,

North Carolina, to Newport News, Virginia. Defendant B&J Contracting, Inc. owned

the commercial truck.     Parmley delivered a propeller to Wildcat Propellers in

Chesapeake, Virginia, on his way to Newport News. On the same day, Defendant

Everett Barrow (“Defendant Barrow”), an employee of Defendant B&J Seafood Co.,

Inc., drove a pickup truck for Defendant B&J Seafood Co., Inc., from New Bern, North

Carolina to Newport News. Defendant Barrow met Parmley in Newport News where




                                           -2-
                                    PARMLEY V. BARROW

                                      Opinion of the Court



their job was to take possession of a scallop dredge,1 and have a crane load it onto the

commercial truck. Neither Defendant Barrow nor Parmley operated the crane.2

After the crane lifted the dredge and placed it on the commercial truck, Parmley and

Defendant Barrow strapped down the dredge.                   Parmley and Defendant Barrow

decided Parmley would drive the pickup truck back to New Bern, and Defendant

Barrow would drive the commercial truck with the dredge.

       Approximately five minutes after securing the dredge, Defendant Barrow

began backing the commercial truck out of a gate. Defendant Barrow then “felt the

[dredge] shift” and pulled over. Defendant Barrow waved for Parmley to also pull

over. Parmley then exited the pickup truck and walked over to Defendant Barrow’s

truck. Defendant Barrow and Parmley walked around the truck to make sure all the

straps were intact. Just as Defendant Barrow came around the truck and got beside

Parmley, the dredge fell off the truck and pinned Parmley to the ground. The dredge

crushed Parmley, and he died.

       On 30 April 2015, Parmley’s wife, Gwendolyn Parmley, individually and as

Administratix of Parmley’s Estate, filed a wrongful death action and a survival claim

against Defendants Barrow, Johnathan Brent Fulcher (“Defendant Fulcher”),3 B&J



       1  In his deposition, Defendant Barrow states “B&J” owned the scallop dredge. Plaintiff’s
complaint alleges the “remaining Defendants” (Defendants other than Barrow) owned the scallop
dredge.
        2 The record does not indicate who owned or operated the crane.
        3 Fulcher is the president of B&J Seafood Co., Inc., and the “managing member” of B&J

Contracting, LLC.

                                             -3-
                                  PARMLEY V. BARROW

                                   Opinion of the Court



Seafood Co., Inc., B&J Contracting, LLC, and B&J Seafood, LLC in Durham County

Superior Court.    On 28 September 2015, the parties, through a consent order,

changed the venue to Pamlico County. On 18 November 2015, Plaintiff filed an

amended complaint naming two additional Defendants, B&J Contracting and B&J

Contracting, Inc. On 17 May 2016, Defendants Fulcher, B&J Contracting, LLC, B&J

Seafood, LLC, B&J Contracting, and B&J Contracting, Inc. moved for partial

summary judgment on the grounds they are not necessary and proper parties to this

litigation and there is no genuine issue of material fact or law as to liability.

      On 27 June 2016, the trial court heard arguments for partial summary

judgment. Defendants’ counsel contended B&J Contracting and B&J Contracting,

LLC are non-existing entities. Specifically, Defendants’ counsel presented affidavits

alleging B&J Contracting is not “an unincorporated association or partnership to the

knowledge of the parties,” and B&J Contracting, Inc. is not an existing corporation.

Defendants’ counsel also presented evidence showing Defendant Fulcher dissolved

B&J Seafood, LLC on 2 September 2010. Defendants’ counsel asserted B&J Seafood

Co., Inc., employed Barrow. Finally, Defendants’ counsel argued Defendant Fulcher

was in New Bern, North Carolina, at the time of the accident and corporate officers

and owners are not necessary or proper parties to a suit against a corporation.

      Plaintiff responded there was a genuine issue of material fact as to whether

any of the Defendant corporations employed Parmley on the day of the accident.



                                          -4-
                                     PARMLEY V. BARROW

                                       Opinion of the Court



Plaintiff also made various arguments stating there was conflicting evidence as to

the involvement of Defendants B&J Contracting, B&J Contracting, Inc. and B&J

Seafood, LLC.4 The Court asked if Plaintiff inquired with the Secretary of State’s

office as to the existence of Defendant corporate entities, and Plaintiff responded,

“Yes, sir. We checked to find out whether or not there was really an Inc., and there

was not an Inc.”

       On 30 June 2016, the trial court entered an order granting partial summary

judgment in favor of Defendants Fulcher, B&J Contracting, LLC, B&J Seafood, LLC,

B&J Contracting and B&J Contracting, Inc. The trial court found there was no

genuine issue of material fact and those Defendants were not necessary and proper

parties to the action. Plaintiff appealed the trial court’s order on 19 July 2016. On

25 July 2016, Plaintiff voluntarily dismissed without prejudice the actions against

Defendants Barrow and B&J Seafood Co., Inc.

       On 1 March 2017, Defendants collectively filed a Rule 9(b)(5) supplement to

the record on appeal.       This supplement contains a copy of a complaint filed by

Parmley’s estate in Durham County and names Defendants Barrow and B&J Seafood




       4   Plaintiff contended Defendant B&J Contracting, Inc. was the only registered owner of the
commercial truck and Defendant B&J Contracting and Defendant Fulcher owned the pickup truck.
Plaintiff also contended Defendant Fulcher’s answer to an interrogatory indicated Defendant B&J
Contracting was the insurer of the commercial truck. Plaintiff asserted Defendant Fulcher told
Plaintiff that Defendant B&J Seafood, LLC drove the pickup truck, even though a LLC cannot actually
drive a vehicle.



                                               -5-
                                        PARMLEY V. BARROW

                                          Opinion of the Court



Co., Inc. as Defendants.5           This new complaint, filed one month after Plaintiff’s

voluntary dismissal, contains allegations which are substantially similar to the

allegations contained in this action’s original complaint.6 In a motion filed on 16

March 2017, Plaintiff requested this Court to strike Defendants’ Rule 9(b)(5)

supplement to the record which references Plaintiff’s new cause of action. We deny

Plaintiff’s motion to strike.7

                                              II. Jurisdiction

        An order is interlocutory if it does not fully dispose of a case and “leaves it for

further action by the trial court in order to settle and determine the entire

controversy.” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).

“A grant of partial summary judgment, because it does not completely dispose of the

case, is an interlocutory order from which there is ordinarily no right of appeal.” Curl

v. American Multimedia, Inc., 187 N.C. App. 649, 652, 654 S.E.2d 76, 78-79 (2007)

(quoting Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993)).




        5  Case No. 16 CVS 004159
        6  Both complaints allege wrongful death under N.C. Gen. Stat. § 28A-18-2 (2016) and a survival
claim under N.C. Gen. Stat. § 28A-18-1 (2016) as well as negligence, imputed negligence, and willful
and wanton negligence. Both complaints allege the same facts in support of their claims.
         7 Plaintiff argues Defendants’ 9(b)(5) supplement violates our Rules of Appellate Procedure

since it contains evidence not originally before the trial court. However, because Plaintiff’s estate filed
a new law suit after the trial court entered its order granting summary judgment, and because the
existence of this new action is a determinative fact in our analysis as to whether this Court has
jurisdiction over Plaintiff’s appeal, we take judicial notice of Plaintiff’s current suit in Durham County
pursuant to N.C. Gen. Stat. § 8C-1, Rule 201 (2016).

                                                   -6-
                                      PARMLEY V. BARROW

                                        Opinion of the Court



       When a trial court grants partial summary judgment in favor of a defendant,

and the plaintiff thereafter voluntarily dismisses its remaining claims, the trial

court’s order serves as a final judgment. Combs & Assocs. v. Kennedy, 147 N.C. App.

362, 367, 555 S.E.2d 634, 638 (2001). This Court held:

               Ordinarily, an appeal from an order granting summary
               judgment to fewer than all of a plaintiff’s claim[s] is
               premature and subject to dismissal. However, since the
               plaintiff here voluntarily dismissed the claim which
               survived summary judgment, any rationale for dismissing
               the appeal fails. Plaintiff’s voluntary dismissal of this
               remaining claim does not make the appeal premature but
               rather has the effect of making the trial court’s grant of
               partial summary judgment a final order.

Curl at 652-53, 654 S.E.2d at 79 (quoting Combs at 367, 555 S.E.2d at 638). In such

an instance, there is nothing left for the trial court to determine or resolve until

Plaintiff commences a new action against Defendants.8

       Here Parmley’s estate has commenced a new action by re-filing its claims

against the remaining Defendants in a new action in Durham County. The rights of

Parmley’s Estate, Defendant Barrow and Defendant B&J Seafood Co., Inc., are still

pending in the trial division. In these circumstances the trial court’s order granting

partial summary judgment in favor of Defendants is no longer a final judgment.




       8 See Noblot v. Timmons, 177 N.C. App. 258 (2006), where this Court decided the merits of an
appeal from an order granting summary judgment dismissing claims against some, but not all,
defendants to an action after the plaintiff voluntarily dismissed claims against remaining defendants
without prejudice.

                                                -7-
                                 PARMLEY V. BARROW

                                  Opinion of the Court



      Because the appeal is interlocutory we must dismiss the appeal unless it falls

within one of the two exceptions allowing a party to appeal from interlocutory order.

Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253

(1994). First, a party may appeal from an interlocutory order when the order is final

as to some claims or parties and the trial court has certified pursuant to Rule 54(b)

of the Rules of Civil Procedure there is no just reason to delay the appeal. Currin &

Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003).

Second, a party may appeal from an interlocutory order when “the order deprives the

appellant of a substantial right that would be lost” in the absence of an immediate

appeal. Id. at 713, 582 S.E.2d at 323.

      Here, the trial court did not include a Rule 54(b) certification in the summary

judgment order. Plaintiff is therefore only entitled to pursue this appeal if the trial

court’s order deprives her of a substantial right that would be lost if this Court

dismissed her interlocutory appeal. The appellant bears the burden to establish the

existence of a substantial right. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d

259, 262 (2001). Plaintiff presents no argument the dismissal of this appeal would

deprive her of a substantial right. Plaintiff fails to meet her burden.

      Since this interlocutory appeal does not qualify for an exception to our rules

prohibiting interlocutory appeals, we must dismiss it.

      DISMISSED.



                                         -8-
                     PARMLEY V. BARROW

                       Opinion of the Court



Chief Judge McGEE and Judge ZACHARY concur.




                              -9-
