Opinion
No. COA12–504.
2012-12-4
ISABEAU DAKOTA INC., and J.K. Idema, Plaintiffs v. William John HAGLER, Defendant.
Stark Law Group, PLLC, by Seth A. Neyhart, for Plaintiffs–Appellees. Coy E. Brewer, Jr., for Defendant–Appellant.
Appeal by defendant from Order entered 25 January 2012 by Judge Mary Ann L. Tally in Cumberland County Superior Court. Heard in the Court of Appeals 8 October 2012. Stark Law Group, PLLC, by Seth A. Neyhart, for Plaintiffs–Appellees. Coy E. Brewer, Jr., for Defendant–Appellant.
ERVIN, Judge.
Defendant William John Hagler appeals from an order granting a motion for partial summary judgment filed by Plaintiffs Isabeau Dakota, Inc., and J.K. Idema. On appeal, Defendant contends that the trial court erred by granting partial summary judgment in favor of Plaintiffs with respect to a counterclaim that Defendant had asserted against Plaintiff Idema sounding in breach of contract on the ground that there were unresolved issues of material fact concerning the extent to which the underlying contract was unlawful and unenforceable. After careful consideration of Defendant's challenge to the trial court's order in light of the record and the applicable law, we conclude that Defendant's appeal has been taken from an unappealable interlocutory order and should be dismissed.
I. Procedural Background
On 3 November 2010, Plaintiffs filed a complaint against Defendant seeking a declaration that Plaintiff Isabeau Dakota was the sole owner of certain real and personal property and that Plaintiff Idema was the president and sole shareholder of Plaintiff Isabeau Dakota, the return of certain personal property, the recovery of compensatory and punitive damages, and temporary and preliminary injunctive relief. In his responsive pleading, Defendant denied the material allegations of Plaintiffs' complaint and asserted two counterclaims, the first of which alleged that Plaintiff Idema had breached a contract under which Defendant had agreed to provide him with certain services connected with the prosecution of an unrelated civil action and the second of which alleged that Plaintiff Idema was liable to Defendant for abuse of process or malicious prosecution stemming from litigation that Plaintiff Idema had initiated against Defendant in the United States District Court for the Southern District of New York. On 30 December 2011, Plaintiffs moved for partial summary judgment on the grounds that Defendant's breach of contract claim was barred by the applicable statute of limitations and that this claim rested upon a contract that was illegal and, therefore, unenforceable. On 25 January 2012, the trial court entered an order granting partial summary judgment in Plaintiffs' favor with respect to Defendant's breach of contract claim on the grounds that “the alleged contract is illegal under Chapter 74C of the North Carolina General Statutes and therefore unenforceable.” The record contains no indication that any of the claims that Plaintiffs have asserted against Defendant or that the second counterclaim that Defendant asserted against Plaintiff Idema have been resolved.
Admittedly, the record does contain indications that Defendant's second counterclaim has been addressed and resolved in the trial court. For example, Plaintiffs sought, and the trial court granted, partial summary judgment with respect to Defendant's “remaining counterclaim.” However, the record is devoid of any explicit indication that Plaintiffs' claims against Defendant or Defendant's second counterclaim against Plaintiff Idema have been resolved.
II. Legal Discussion
The initial question that we must address is the extent, if any, to which Defendant's appeal is properly before this Court. As a result of the fact that the record is devoid of any indication that Plaintiffs' claims against Defendant and Defendant's second counterclaim against Plaintiff Idema have been resolved at the trial court level, the order from which Defendant seeks to appeal is clearly interlocutory in nature. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (stating that “[a]n interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy”) (citing Johnson v. Roberson, 171 N.C. 194, 195, 88 S.E. 231, 231–32 (1916)). Simply put, “[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 v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993).
An interlocutory order is, however, subject to immediate appeal if (1) “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” or (2) “the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994) (citing N.C. Gen.Stat. § 1–277 and Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677, and quoting N.C. R. Civ. P. 54(b) and Southern Uniform Rentals v. Iowa Nat'l Mut. Ins. Co., 90 N.C.App. 738, 740, 370 S.E.2d 76, 78 (1988)). As a result, we are required to dismiss Defendant's appeal unless Defendant has demonstrated that the trial court's order is immediately appealable for one or the other of the reasons set forth above. Bell v. Goodling, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (stating that “[i]t is well-established in this jurisdiction that if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves”) (citing Dickey v. Herbin, 250 N.C. 321, 325, 108 S.E.2d 632, 635 (1959) and Rogers v. Brantley, 244 N.C. 744, 745, 94 S.E.2d 896, 896 (1956)).
According to N.C.R.App. P. 28(b)(4), an appellant's brief must include “[a] statement of the grounds for appellate review,” including a “citation of the statute or statutes permitting appellate review.” More particularly, N.C.R.App. P. 28(b)(4) requires a party relying on a certification made pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b) to “show that there has been a final judgment as to one or more but fewer than all of the claims or parties and that there has been a certification by the trial court that there is no just reason for delay” and requires a party claiming that the trial court's order affects a “substantial right” to set out “sufficient facts and argument to support appellate review on the ground that the challenged order” has that effect. N.C.R.App. P. 28(b)(4). Defendant has done neither. On the one hand, Defendant has not claimed that the trial court certified the order granting partial summary judgment in Plaintiffs' favor with respect to Defendant's breach of contract claim for immediate review pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b), and our review of the trial court's order confirms that no such certification was made. Although Defendant does assert in his brief that “[t]he Granting of Summary Judgment removing from the case Defendant Appellant's entire counterclaims affects a substantial right of the Defendant Appellant pursuant to N.C. [Gen.Stat.] § 1–277,” he has completely failed to explain why the trial court's order “affect[s] a substantial right that would work injury to [Defendant] if not corrected before appeal from final judgment.” Jeffreys, 115 N.C.App. at 379, 444 S.E.2d at 253–54. As we have previously stated, “[i]t 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.” Id. (citing GLYK & Assocs. v. Railway Co., 55 N.C.App. 165, 170–71, 285 S.E.2d 277, 280 (1981)). As a result of the fact that Defendant has failed to provide any justification for a conclusion that the trial court's order granting Plaintiffs' motion for partial summary judgment with respect to Defendant's breach of contract claim is immediately appealable, we are compelled to dismiss Defendant's appeal for lack of jurisdiction and hereby do so.
In addition to the language from Defendant's brief quoted in the text, the record on appeal contains a statement that “[t]his Court has jurisdiction to review whether the trial court erred in granting the Plaintiffs Motion for Partial Summary Judgment and Dismissing Defendants Counterclaims.” However, this statement constitutes nothing more than an unsupported assertion that has no effect on the appealability analysis set forth in the text of this opinion.
APPEAL DISMISSED. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).