Unigard Carolina Ins. Co. v. Dickens

254 S.E.2d 197 (1979)

41 N.C. App. 184

UNIGARD CAROLINA INSURANCE COMPANY v. F. Marion DICKENS, Individually and as President of Dickens & Hux Awnings, Inc., and Dickens & Hux Awnings, Inc.

No. 786DC644.

Court of Appeals of North Carolina.

May 1, 1979.

*198 Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for plaintiff-appellee.

Clark & Godwin by Charlie D. Clark, Jr., Roanoke Rapids, for defendants-appellants.

PARKER, Judge.

By this appeal the defendants attempt to obtain immediate appellate review of an interlocutory order of the trial court which accepted the jury's verdict fixing liability and directed there be a new trial solely on the issue of damages. We find the appeal premature and order it dismissed.

In Industries, Inc. v. Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), the opinion in which was filed on 5 February 1979, our Supreme Court held that an order of the trial court granting plaintiff's motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, and denying defendant's motion for summary judgment, was an interlocutory order not subject to immediate appeal. The defendants in the present case, after entry of the order from which they now attempt to appeal, were in precisely the same position as the defendant in Industries, Inc. v. Insurance Co., supra after entry of the order from which appeal was attempted in that case, albeit they had followed a different route to get there. In each case defendants were confronted with an order which fixed liability and retained the cause for determination solely on the issue of damages. In holding the order in Industries, Inc. not immediately appealable inasmuch as it was an interlocutory order which did not deprive defendant of any substantial right, our Supreme Court observed that "[e]ven if defendant is correct on its legal position, the most it will suffer from being denied an immediate appeal is a trial on the issue of damages." 296 N.C. at 491, 251 S.E.2d at 447. The same can be said of the defendants in the present case. The defendants here, as the defendant in Industries, Inc., can preserve the right to have appellate review of all trial court proceedings by duly entered exceptions on appeal from the final judgment. All reasons advanced by our Supreme Court in Industries, Inc. against permitting fragmentary, premature, and unnecessary appeals, apply with equal force in the present case.

The decision of this court in Digsby v. Gregory, 35 N.C.App. 59, 240 S.E.2d 491 (1978), insofar as it recognized the right of immediate appeal from an order granting a partial new trial on the issue of damages only, is overruled. The decision in that case was rendered prior to the decision of our Supreme Court in Industries, Inc. v. Insurance Co., supra, which we find controlling. We now hold that the language in G.S. 1-277(a) which provides that "[a]n appeal may be taken from every judicial order or determination of a judge of a superior or district court . . . which . . . grants or refuses a new trial," does not apply to an order which grants only a partial new trial.

For the reasons stated, this appeal is

Dismissed.

HEDRICK and CARLTON, JJ., concur.