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Milton v. Thompson5/3/2005
Interlocutory orders that have not been certified by the trial court and do not affect a substantial right are not immediately appealable. Liggett Group Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). In this case, Defendants appeal from an order denying a Motion to Enforce Settlement in a personal injury action. Because this Court has previously held that an appeal from a denial to enforce a settlement agreement in a workers' compensation case did not affect a substantial right, we likewise must conclude that an appeal from a denial to enforce asettlement agreement in a personal injury action does not affect a substantial right. Ledford v. Asheville Hous. Auth., 125 N.C. App. 597, 600, 482 S.E.2d 544, 546, disc. review denied, 346 N.C. 280, 487 S.E.2d 550 (1997). Accordingly, we dismiss this appeal.
Defendants (Tony Dale Thompson, Standard Tools and Equipment Company, and Standard Tools Acquisition Corporation), do not contest any of the findings of fact in the trial court's order denying their motion to enforce a settlement agreement. Summarily, the findings of fact state that Plaintiff Edith Milton was involved in an automobile accident and hired attorney David Hartley and the law firm of Kelly & West to represent her in her claim for personal injuries against Defendants. Attorneys J. Thomas West and J. David Lewis were both members of the law firm Kelly & West and were involved in the handling of Ms. Milton's case.
On 11 April 2003, an unsuccessful mediated settlement conference was held with Ms. Milton, her husband (James Milton), and all attorneys present. However, sometime afterward, Ms. Milton authorized her husband to contact her attorneys "to authorize settlement negotiations with Defendant to a minimum of $450,000.00." In turn, Mr. Milton "telephoned Attorney Lewis at the firm of Kelly & West and advised Attorney Lewis that [Ms. Milton] was interested in settling her personal injury case, that they would like to receive the maximum amount they could get, but that $450,000.00 would be the 'floor' or minimum amount" that Ms. Milton would accept for settlement. Mr. Milton informed Mr. Lewis that they did not want to leave a $450,000.00 offer "on the table"if they could get it. Mr. Lewis relayed this conversation to Mr. West and Mr. Hartley.
On 18 July 2003, Mr. Lewis telephoned counsel for Defendants and left a voicemail message advising Defendants' counsel of a new settlement demand of $553,698.00. Mr. Lewis requested that Defendants' counsel contact either him or Mr. West.
On 21 July 2003, Mr. West contacted Defendants' counsel to resume settlement negotiations. Ultimately, counsel for Defendants offered $460,000.00 in settlement which Mr. West accepted and confirmed by letter. A copy of the confirmation letter was sent to Ms. Milton. Defendants' counsel confirmed this settlement by letter dated 24 July 2003.
On 29 July 2003, Mr. Milton called Mr. Lewis and advised him that at a recent family reunion several family members thought Ms. Milton deserved more money. Mr. Milton acknowledged that he had authorized settlement with a "floor" of $450,000.00, but Ms. Milton no longer wanted to settle her case for that amount.
On 7 October 2003, Defendants' counsel sent a settlement check in the amount of $460,000.00 to Ms. Milton's attorneys and on 16 October 2003, sent Releases and Dismissals to be executed by Ms. Milton. Ms. Milton neither endorsed the check nor signed the release or dismissal.
On 23 October 2003, Defendants filed a Motion to Enforce Settlement. Following a hearing, the trial court denied the motion concluding that Mr. West "did not have legal capacity to settle the
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