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Hoisington v. Zt-Winston-Salem Associates6/15/1999
of some parties are suggestive; moreover, counsel at oral argument advised this Court that there had been settlements. We proceed in reliance on that information. The plain language of the indemnity clause in the contract calls for indemnification of Zaremba only if Zaremba were found liable for actions or omissions of Wackenhut and its employees; the contract does not purport to indemnify Zaremba from its own negligence. Finding liability would therefore require (1) proof that Wackenhut was actually negligent and (2) imputed liability to Zaremba. Zaremba's argument fails on both grounds. First, as we held above, there is no evidence that Wackenhut was negligent. Second, damages caused by any negligence on Wackenhut's part could not be imputed to Zaremba, because Wackenhut is an independent contractor, as is specified by the contract between the parties. It has long been the law in this state that "one who employs an independent contractor is not liable for the independent contractor's negligence unless the employer retains the right to control the manner in which the contractor performs his work." Woodson v. Rowland, 329 N.C. 330, 350, 407 S.E.2d 222, 234 (1991); see also Rivenbark v. Construction Co., 14 N.C. App. 609, 188 S.E.2d 747, cert. denied, 281 N.C. 623, 190 S.E.2d 471 (1972). There is no evidence that Zaremba had such control over Wackenhut's employees. This assignment of error is overruled.
THE TREE FACTORY'S APPEAL
As a final matter, we turn to the appeal of third-party defendant- appellant The Tree Factory, which filed a Notice of Appeal in this action "on the basis of potential res judicata effect of the Trial Court's decision on Tree Factory's pursuit of its own action against The Wackenhut Corporation." The Tree Factory brought no claims below, and all claims against it were voluntarily dismissed. Only a "party aggrieved" may appeal from a trial court's order. See N.C. Gen. Stat. ยง 1-271 (1996). A "party aggrieved" is one whose rights have been directly and injuriously affected by the judgment entered in the superior court. See Culton v. Culton, 327 N.C. 624, 398 S.E.2d 323 (1990); Selective Ins. Co. v. Mid-Carolina Insulation Co., 126 N.C. App. 217, 484 S.E.2d 443 (1997). Where a party is not aggrieved, his appeal will be dismissed. See Boone v. Boone, 27 N.C. App. 153, 218 S.E.2d 221 (1975). The Tree Factory, having brought no claims and having no claims pending against it, is not a party aggrieved. The appeal brought by The Tree Factory is therefore dismissed.
We affirm the trial court's grant of summary judgment in favor of Wackenhut. We dismiss the appeal of The Tree Factory.
Affirmed in part, dismissed in part.
Judges WALKER and McGEE concur.
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