Jeffreys v. Raleigh Oaks Joint Venture

• Decision Date: 21 June 1994
• Docket Number: No. 9310SC431,9310SC431
• Citation: 444 S.E.2d 252,115 N.C.App. 377
• Court: North Carolina Court of Appeals
• Parties: Lois Upchurch JEFFREYS and Joseph Randolph Jeffreys, Plaintiffs, v. RALEIGH OAKS JOINT VENTURE, Raleigh Oaks Shopping Center, Inc., a Tennessee Corporation Seymour Vogel, Syson Group, Inc., W.R. Henderson & Associates, Inc., a North Carolina Corporation, W.R. Henderson, Vernon Brown, Raleigh Oaks Limited, a North Carolina Partnership, and Fleet National Bank, Defendants.

Page 252

444 S.E.2d 252

115 N.C.App. 377

Lois Upchurch JEFFREYS and Joseph Randolph Jeffreys, Plaintiffs, v.RALEIGH OAKS JOINT VENTURE, Raleigh Oaks Shopping Center Inc., a Tennessee CorporationSeymour Vogel, Syson Group Inc., W.R. Henderson & Associates, Inc., a North Carolina Corporation, W.R. Henderson, Vernon Brown, Raleigh Oaks Limited, a North Carolina Partnership, and Fleet National Bank, Defendants.

No. 9310SC431.

Court of Appeals of North Carolina.

June 21, 1994.

McMillan, Kimzey & Smith by James M. Kimzey and Katherine E. Jean, Raleigh, for plaintiff-appellees.

Howard, From, Stallings & Hutson, P.A. by John N. Hutson, Jr., Raleigh, for defendants-appellant.

ORR, Judge.

The sole issue before this Court is whether the trial court erred in granting plaintiffs' summary judgment motion as to ROJV's counterclaims against plaintiffs.We need not address this issue, however, as this appeal is interlocutory and ROJV has failed to show this Court that a substantial right of ROJV's will be affected if ROJV is not given the right of immediate appeal from this order.

ROJV is appealing from the grant of partial summary judgment dismissing its counterclaims against plaintiffs."A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal."Liggett Group, Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677(1993)."The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts."Fraser v. Di Santi, 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856(1985).

"Nonetheless, in two instances a party is permitted to appeal interlocutory orders...."Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677(emphasis by underline added).First, a party is permitted to appeal from an interlocutory order when the trial court enters "a final judgment as to one or more but fewer than all of the claims or parties" and the trial court certifies in the judgment that there is no just reason to delay the appeal.N.C.R.Civ.P. 54(b);Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677.Second, a party is permitted to appeal from an interlocutory order when "the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits."Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C.App. 738, 740, 370 S.E.2d 76, 78(1988);N.C.Gen.Stat. § 1-277.Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.

Because the trial court in the case sub judice made no certification as required by Rule 54(b) of the North Carolina Rules of Civil Procedure, the first avenue of appeal is closed to ROJV.SeeLiggett Group, Inc., 113 N.C.App. at 24, 437 S.E.2d at 677.ROJV did not, therefore, have a right to appeal the order in this case unless the order affected a substantial right that would work injury to ROJV if not corrected before appeal from final judgment.Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736(1990).ROJV has failed, however, to make such a showing to this Court.

ROJV presented neither argument nor citation to show this Court that ROJV had the right to appeal the order dismissing its counterclaims.It is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.SeeGLYK and Associates v. Winston-Salem Southbound Railway Co., 55 N.C.App. 165, 170-71, 285 S.E.2d 277, 280(1981)(wherein this Court stated that the question of whether it...