Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Mediation Not Required for All Plaintiffs
in Hog Farm Nuisance Action

Gaby R. Jabbour
National AgLaw Center Research Assistant

In an action brought by several plaintiffs against a hog farm and its operators in which some, but not all, of the plaintiffs participated in pre-litigation mediation, the North Carolina Court of Appeals has ruled that the plaintiffs who did not participate in the pre-litigation mediation were not subject to dismissal because they had not participated in the mediation. Powell v. Bulluck, 573 S.E.2d 699, 701-02 (N.C. Ct. App. 2002).

Walter Phillip Bulluck, Vicky Lynn Bulluck, and Hanor Company, Inc. (Hanor), defendants, began an industrial-size hog farming operation in Morningstar, North Carolina. See id. at 701. Evelyn Powell, Morningstar Baptist Church, Inc. (Morningstar), and Concerned Citizens of Edgecombe II (CCE II), plaintiffs, joined to oppose the operation of the hog farm. See id.

Prior to filing the original complaint the plaintiffs requested and participated in pre-litigation mediation concerning the parties' dispute. See id. The mediation did not resolve the dispute and on February 11, 1999, the mediator certified an impasse. See id. On June 15, 1999, Powell, Morningstar, and CCE II initiated a nuisance action against the defendants. See id. The original complaint was dismissed against Powell and Morningstar without prejudice and against CCE II with prejudice. See id. Powell and Morningstar were given one year to re-file suit. See id. at 702. On June 4, 2001, Powell, Morningstar, and three additional plaintiffs who had not participated in pre-litigation mediation re-filed their lawsuit against the defendants. See id.

The defendants filed a counterclaim, alleging "malicious and false statements and intentional interference with contractual relations." Id. at 701. The defendants subsequently moved for costs and filed a motion to dismiss the three plaintiffs who had not participated in the pre-litigation mediation pursuant to N.C.R. Civ. P. 12(c). See id. at 701-702. The plaintiffs then filed a motion to dismiss defendants' counterclaim and requested that sanctions be imposed on the defendants for filing their counterclaim. See id.

The trial court entered an order granting the defendants' motion to dismiss the three additional plaintiffs and the defendants' motion for costs and denying plaintiffs' motions for sanctions and dismissing their counterclaim. See id. The plaintiffs appealed the trial court's decision to the North Carolina Court of Appeals. See id.

The appeals court first considered the trial court's dismissal of the three additional plaintiffs and noted that, even though the issue of whether some plaintiffs were properly dismissed from a farm nuisance lawsuit is interlocutory, it would "treat plaintiffs' appeal on this issue as a petition for writ of certitiorari." Id. (citing N.C. Gen. Stat. § 7A-32(c) (2001); N.C.R. App. P. 21(a) (1); Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co., 541 S.E.2d 157,161 (N.C. Ct. App.2000)).

The court explained that "prior to initiating a farm nuisance action, a party is required to submit to pre-litigation mediation" in order to "facilitate settlement and to make civil litigation more economical, efficient, and satisfactory to litigants and the state." Id. at 701-702. (citing N.C. Gen. Stat. § 7A-38.3(c) (2001) and N.C. Gen. Stat. § 7A-38.1(a) (2001)). It also explained that "if a party brings a farm nuisance action before a farm resident or any other party has initiated pre-litigation mediation, then the action shall, upon the motion of any party prior to trial, be dismissed without prejudice by the court." Id. at 702 (citing N.C. Gen. Stat. § 7A-38.3(c)).

The court stated that "even though the pre-litigation mediation request does not list the names of all of the plaintiffs, the action is not subject to dismissal as to those plaintiffs." Id. It also stated that "the statute does not require that all interested parties, who may later become plaintiffs, join in the request for mediation," but that "the statute providing for pre-litigation mediation specifically states that a farm resident or any other party may initiate mediation." Id. (quoting N.C. Gen. Stat. § 7A-38.3).

The court noted that the pleadings alleged that the plaintiffs participated in pre-litigation mediation, and that the mediator's report did not list any party as being absent. See id. Taking the pleadings with attachments in the light most favorable to the plaintiffs, the appeals court ruled that the "plaintiffs have satisfied the requirements for requesting and participating in pre-litigation mediation as required by the rules and statutes." Id.

Next, the court examined defendants' argument that the appeal should be dismissed as interlocutory. See id. It noted that "judgements and orders that are not a final determination of the entire controversy as to all parties are interlocutory." Id. (citing Carriker v. Carriker, 511 S.E.2d 2,4 (N.C. 1999)). The court stated that the general rule is that "there is no right of immediate appeal from interlocutory orders." Id. (citing McCall v. McCall, 531 S.E.2d 894, 895 (N.C. Ct. App. 2000) and Veazey v. City of Durham, 57 S.E.2d 377 (N.C. 1950)).

However, the court explained that "an order, though interlocutory, is immediately appealable if it affects a substantial right that would be lost, prejudiced or less than adequately protected if an immediate appeal were not allowed." Id. at 703 (citing N.C. Gen. Stat. § 1-277(a) (2001)). It also explained that the burden is on the appellant to show that "(1) the judgement affects a right that is substantial; and (2) the deprivation of that substantial right will potentially work injury to him if not corrected before appeal from final judgment." Id. (citing Collins v. Talley, 522 S.E.2d 794, 796 (N.C. Ct. App. 1999)).

The court noted that "the denial of a motion to dismiss is not immediately appealable, without showing a substantial right is affected." Id. (citing Thompson v. Norfolk S.Ry.Co., 535 S.E.2d 397, 401 (N.C. Ct. App. 2000)). The court also noted that "where a court directs a party to pay fees or costs, no substantial right is involved that would allow an immediate appeal, and absent a showing that substantial right is involved, an order refusing to impose sanctions is not immediately appealable." Id. (citing Frost v. Mazda Motor of America, Inc., 540 S.E.2d 324, 328 (N.C. 2000); Cochran v. Cochran, 378 S.E.2d 580, 582 (N.C. Ct. App. 1989); Ford Motor Credit Co. v. Dean, 560 S.E.2d 886 (N.C. Ct. App. 2002); and Routh v. Weaver, 313 S.E.2d 793, 795 (N.C. Ct. App. 1984)). The court concluded that, contrary to the plaintiffs' contentions, "a denial of their motion to dismiss defendant's counterclaim does not affect a substantial right entitling them to an immediate appeal." Id.

The case was decided on December 31, 2002; this summary was posted May, 2003