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Guthrie v. Conroy8/6/2002
PUBLISHED
Plaintiff (Linda Guthrie) appeals from a summary judgment order entered 14 March 2001 in favor of defendants (Raymond Conroy and Clegg's Termite and Pest Control, Inc.). For the reasons that follow, we affirm in part and reverse in part.
Plaintiff was employed in 1998 by defendant Clegg's Termite and Pest, Inc. (Clegg's), as a secretary. Defendant Conroy was plaintiff's co-employee, and worked for Clegg's as a salesman and pesticide technician. On 17 March 1999, plaintiff submitted her resignation from Clegg's, in a letter stating that her departure was due to her medical problems, the side effects of various medications, and her feeling that it was unfair for her co-workers to have to "put up with condition." Plaintiff suffered from severe rheumatoid arthritis for which she took numerous medications, some with adverse side effects. However, plaintiff was persuaded not to leave and remained at Clegg's for two more months. On 20 May 1999, plaintiff submitted a second resignation letter, this one stating that she was quitting in order to escape sexual harassment by defendant Conroy. She then ceased working for defendant Clegg's.
On 5 October 1999, plaintiff filed suit against defendants, alleging (1) intentional infliction of emotional distress (IIED) by both defendants; (2) negligent infliction of emotional distress (NIED) by both defendants; (3) negligent retention and supervision of Conroy by defendant Clegg's; and (4) civil assault by both defendants. Plaintiff sought compensatory and punitive damages, and attorneys' fees. Defendants filed a summary judgment motion on 26 September 2000, which was heard in November, 2000. On 13 November 2000, the trial court issued an order granting partial summary judgment; the court dismissed all of plaintiff's claims, except for her civil assault action against defendant Conroy. Plaintiff appeals from the grant of summary judgment in favor of defendants. Motion to Dismiss Appeal
On 7 March 2001, plaintiff filed a motion "pursuant to rule 54(b) and rule 60," asking the trial court to amend its 13 November 2000 summary judgment order by adding the phrase "final judgment." Plaintiff asserted that without that phrase, the order was interlocutory and not subject to immediate appeal. On 9 March 2001, the trial court entered an amended summary judgment order making the same rulings as its 13 November order, and adding the phrase "final judgment." Plaintiff appealed from the amended order on 20 March 2001.
On 15 June 2001, defendants filed a motion in this Court seeking dismissal of plaintiff's appeal. Defendants argue that the 13 November 2000 summary judgment order was immediately appealable, and that plaintiff was required by N.C.R. App. P. 3(c) to give notice of appeal within 30 days of its entry. We agree.
We note initially that plaintiff has argued that, by failing to appeal from the amended order of 9 March 2001, or to file a crossassignment of error, defendants waived the right to move for dismissal of plaintiff's appeal. However, defendant's motion for dismissal presents a question of jurisdiction, which may be addressed by this Court at any time, sua sponte, regardless of whether defendants properly preserved it for appellate review. Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) ("if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question . . . has not been raised by the parties themselves").
The summary judgment order from which plaintiff appeals is interlocutory, because it leaves unresolved plaintiff's claim against Conroy for civil assault. Creech v. Ranmar Props., 146 N.C. Ap
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