concurring in part and dissenting in part.
I concur with the majority opinion on the issues of the timeliness of defendant’s motion seeking costs, and that the costs were taxed against Ms. Crudup only in her capacity as guardian ad litem. I must respectfully dissent as to the majority’s holding that Mr. Alston and Ms. Kelly can be held liable for costs incurred after they were dismissed from the lawsuit.
As explained in the majority opinion, this case has a long and tortured procedural history going back to 2007, when the original complaint was filed. The current action, filed in 2008, contained multiple claims, by multiple plaintiffs, against multiple defendants, based upon multiple legal theories. These claims were resolved either by settlement or dismissal by the trial court over the next two years. On 12 March 2009, the claims of Mr. Alston and Ms. Kelly were dismissed by the trial court, with prejudice. These orders were not appealed by Mr. Alston and Ms. Kelly. The claims of the other plaintiffs were finally resolved by this court in Green v. Kearney,_N.C. App._, 719 S.E.2d 137 (2011). Neither Mr. Alston nor Ms. Kelly was a party to that appeal.
The issue presented is a narrow one: whether Mr. Alston and Ms. Kelly can be taxed with court costs incurred by defendants after their claims were dismissed, with prejudice, on 12 March 2009. The majority holds that since under the provisions of N.C.R. Civ. R 54(b) Mr. *294Alston and Ms. Kelly remained parties to the action until all of the claims of all of the parties were resolved, they are liable for all costs incurred by the defendants.
In support of this proposition, the majority cites the case of Knox v. Lederle Labs, 4 F.3d 875, 878 (10th Cir. 1993). Knox was not a case dealing with the assessment of court costs, but rather was a res judicata case. Wyeth Labs moved for summary judgment in a prior action instituted by the plaintiff, and that motion was granted. Subsequently, plaintiffs dismissed their first action, without prejudice. A second action was later instituted. When plaintiffs rejoined Wyeth as a defendant in the second suit, Wyeth pled the prior summary judgment order in bar of plaintiffs’ claims.
The Tenth Circuit Court of Appeals held that since at the time of entry of summary judgment in favor of Wyeth in the first suit, not all of the claims were resolved, Wyeth remained a party to the action. “Wyeth never requested the district court to issue a final judgment as to it. Therefore, under the plain language of Rule 54(b), Wyeth remained a party to the action when Plaintiffs sought to dismiss without prejudice.” Knox, 4 F.3d at 878.
A federal statute permitted plaintiffs to withdraw their action for vaccine-related injury or death, and to file a petition under the National Childhood Vaccine Injury Compensation Act. 42 U.S.C. § 300aa-ll. The Tenth Circuit held that since Wyeth remained a party to the action, the dismissal without prejudice controlled, and allowed them to be a party to the second action.
Explicit in the holdings of Knox and the majority opinion in the instant case is that it was incumbent upon Mr. Alston and Ms. Kelly to take some affirmative action following their dismissal from the lawsuit in order to stop the subsequent costs of defendants from being assessed against them. Knox states that this affirmative action would be to seek a “final judgment.” I have reviewed the provisions of the North Carolina Rules of Civil Procedure, and can locate no provision where a plaintiff can request a “final judgment” where the trial court has already dismissed all of their claims, with prejudice.
In their brief, defendants suggest four specific acts that Mr. Alston and Ms. Kelly could have performed so as to not incur liability for court costs after their claims were dismissed: (1) do not file the lawsuit in the first place; (2) dismiss their lawsuit after discovery revealed the lack of merit of their claims; (3) voluntarily dismiss their claims after the trial court had dismissed them, with prejudice; or *295(4) seek a certification from the trial court under North Carolina Rule of Civil Procedure 54(b), and undertake an interlocutory appeal as to the dismissal of their claims. I do not find suggestions (1) and (2) to be helpful, since the issue only arises upon the dismissal of claims by the trial court. Suggestion (3) appears to be nonsensical. The dismissal of claims after they have already been dismissed, with prejudice, would be a fruitless act.
As to suggestion (4), this State has long had a policy of discouraging the piecemeal, interlocutory appeals.
General Statutes 1-277 and 7A-27 in effect provide “that no appeal lies to an appellate court from an interlocutory order or ruling of the trial judge unless such ruling or order deprives the appellant of a substantial right which he would lose if the ruling or order is not reviewed before final judgment.” Consumers Power v. Power Co., 285 N.C. 434, 437, 206 S.E.2d 178, 181 (1974); accord, Funderburk v. Justice, 25 N.C. App. 655, 214 S.E.2d 310 (1975). An order is interlocutory “if it does not determine the issues but directs some further proceeding preliminary to final decree.” Greene v. Laboratories, Inc., 254 N.C. 680, 693, 120 S.E.2d 82, 91 (1961). The reason for these rules is to prevent fragmentary, premature and unnecessary appeals by permitting the trial divisions to have done with a case fully and finally before it is presented to the appellate division. “Appellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.” Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951).
Waters v. Personnel, Inc., 294 N.C. 200, 207-08, 240 S.E.2d 338, 343 (1978) (footnotes omitted).
To require a losing party in a multiple-party, multiple-claim case to seek an interlocutory appeal in order to prevent it from being taxed with court costs incurred by the prevailing party subsequent to the dismissal flies in the face of the above-stated policy. It would in effect mandate that the risk of being taxed with future costs is a substantial right, meriting an interlocutory appeal under N.C. Gen. Stat. §§ 1-277 and 7A-27(d). I believe this to be contrary to the statutes and case law of North Carolina.
*296I would hold that even though Mr. Alston and Ms. Kelly technically remained parties to the lawsuit following the dismissal of 12 March 2009, the dismissal became final when they elected not to appeal that ruling at the time that the other plaintiffs appealed the dismissal of their claims in January of 2011. In the absence of evidence that Mr. Alston and Ms. Kelly actively participated in the litigation after 12 March 2009, they should not have been assessed with any of defendants’ costs incurred after that date.
The order of 12 March 2009, was an interlocutory order, and Mr. Alston and Ms. Kelly had the right to wait and see how the remainder of the claims were resolved before making a final decision on whether to appeal the dismissal. They should not be taxed with costs incurred after the dismissal in the absence of evidence showing that the subsequently incurred costs were attributable to their conduct.
I would hold that the trial court erred in assessing court costs against Mr. Alston and Ms. Kelly which accrued after the date of the dismissal with prejudice, 12 March 2009.