63 N.C. App. 140 | N.C. Ct. App. | 1983
The first issue we must decide is whether defendants’ appeal is premature. G.S. 1A-1, Rule 54(b) of the Rules of Civil Procedure provides:
(b) Judgment upon multiple claims or involving multiple parties.—
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal or as otherwise provided by these rules or other statutes. In the absence of entry of such a final judgment, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and shall not then be subject to review either by appeal or otherwise except as expressly provided by these rules or other statutes. Similarly, in the absence of entry of such a final judgment, any order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
It is clear that the judgment from which defendant has appealed adjudicated fewer than all of the claims in this case and was final as to less than all of the parties. It is also clear that in his judgment, the trial judge did not certify that there was no just reason for delay. Under such circumstances, an appeal will not lie unless the judgment affects a “substantial right” under either G.S. 1-277 or 7A-27(d). See Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E. 2d 240 (1980). In Green v. Duke Power Co., 305 N.C. 603, 290 S.E. 2d 593 (1982), our Supreme Court held that the right to avoid separate trials on separate issues is not such a “substantial right.” As noted by the Court in Green, “the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by
The rules and principles under which summary judgment may be properly entered are well-established and need not be repeated here. See generally Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982); and McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972).
To begin our analysis, we must determine the nature of third-party plaintiffs’ claims against third-party defendants. The first claim is obviously for breach of contract and requires no further analysis or discussion. In support of their motion, third-party defendants offered the affidavits of four persons: R. K. Adams, R. K. Adams, Jr., Steve Turbeville, and Bruce Motz. In his affidavit, Adams stated, in summary, that he had been in the housemoving business for 15 years; that he had moved several thousand houses, including several hundred located on concrete slabs, as was the building he attempted to move for third-party plaintiffs; that “never before has a building collapsed when it was being moved”; that his company not only had the training and experience to move houses, but all the necessary equipment; that when approached by Van Matthews, he examined the building as fully as possible and saw no apparent defect or signs of instability. Adams further testified that when his crew attempted to move the building it collapsed; that it was only after the collapse that it was discovered that the wall sections of the building had been fastened together with staples instead of nails; and that this unstable condition could not have been detected by visual examination of the building.
The foregoing representations on behalf of third-party defendants accomplished no more than to elaborate on the defenses raised by them in their answer, and do not entitle them to judgment as a matter of law on the breach of contract claim. The probative value of all of these statements depends upon the credibility of the affiants, and the question of credibility is for the trier of fact. Third-party defendants’ mere assertions that they were not on notice of any defect in the building, that they could not have known of any defect, and that the building’s construction was what caused it to collapse, did not establish those matters conclusively as to entitle third-party defendants to summary judgment. There remain in this case genuine issues of material fact as to third-party plaintiffs’ first claim.
Third-party plaintiffs’ second claim raises more difficult questions. Ordinarily, an action in tort may not be founded on a failure by one party to a contract to carry out a contractual duty to another party to the contract. See 86 C.J.S. Torts, Sections 1-3; see also Pinnix v. Toomey, 242 N.C. 358, 87 S.E. 2d 893 (1955); compare Ports Authority v. Roofing Co., 294 N.C. 73, 240 S.E. 2d 345 (1978). In Ports Authority, our Supreme Court recognized a number of exceptions to this general rule, one of them being where
The injury, proximately caused by the promisor’s negligent, or wilful, act or omission in the performance of his contract, was loss of or damage to the promisee’s property, which was the subject of the contract, the promisor being charged by law, as a matter of public policy, with the duty to use care in the safeguarding of the property from harm, as in the case of a common carrier, an innkeeper or other bailee. See: Insurance Co. v. Parker, 234 N.C. 20, 65 S.E. 2d 341 (1951) (automobile stolen from a parking lot inviting public patronage).
The duty of third-party defendants in this case was closely analogous to those duties under a contract of bailment. Based
For the reasons stated, the judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.