Wednesday, January 03, 2007, 6:10 AM

Unspecific Summary Judgment Order Raises Potential For 2 Trials On Same Fact Issues And Conflicting Verdicts

In Three Rivers Valle v. Grove Park Inn, filed yesterday, the COA held that where the trial court didn't specify a basis for granting summary judgment for the defendant and, under certain scenarios, the risk of two trials with inconsistent verdicts could arise, interlocutory appellate review was warranted.

Generally, interlocutory orders that don't fully dispose of a case are not appealable. They are appealable, though, where there is a risk of two trials on the same factual issues with potentially inconsistent verdicts on those issues (see, e.g., Camp v. Leonard, 133 N.C. App. 554, 515 S.E.2d 909 (1999)).

In Three Rivers Valle, the trial court granted summary judgment in favor of the defendant and dismissed plaintiff's breach of contract claim--without specifying a basis for the ruling. However, the defendant's breach of contract counterclaim against Plaintiff was still live. Nevertheless, plaintiff appealed.

The COA held that it was impossible to determine whether the trial court granted summary judgment in favor of the defendant because of (a) the running of the statute of limitations, (b) failure of consideration for an alleged contract modification, or (c) non- existence of a contract between the parties. Because the factual issues presented by possibilities (b) and (c) were also live as to the defendant's counterclaim, the COA held the possibility of a jury verdict on the counterclaim inconsistent with summary judgment on Plaintiff's claim existed. A substantial right was therefore affected and appellate review proper.

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