Opinion
No. 07-1053.
Filed March 4, 2008.
Richmond County No. 04CVS239.
Appeal by Plaintiff Jerry Chappell Wallace from an order entered 25 May 2007 by Judge John W. Smith in Richmond County Superior Court. Heard in the Court of Appeals 25 February 2008.
Henry T. Drake, for Plaintiff-Appellant. Sharpe Buckner, PLLC, by Richard G. Buckner, for Defendant-Appellee Jerry Chappell Wallace, II.
Jerry Chappell Wallace (Plaintiff) appeals from an order granting partial summary judgment to Defendants. We dismiss the appeal as interlocutory.
This case stems from a dispute over real property in Richmond County. In a related case, on 16 December 2003, an order was entered evicting plaintiff from the property. This Court subsequently affirmed orders denying plaintiff's motions to set aside the summary ejectment. Wallace v. Wallace, 179 N.C. App. 436, 634 S.E.2d 273 (2006) (unpublished opinion, COA05-1383).
On 10 March 2004, Plaintiff filed a complaint seeking a declaration that he was the owner of the real property by adverse possession. Plaintiff additionally sought damages for loss of personal property, asserted claims of fraud and sought punitive damages. On 22 March 2007, Defendant Jerry Chappell Wallace, II, moved for summary judgment. On 25 May 2007, the trial court granted partial summary judgment to Defendant Chappell on the claim of adverse possession and the claim of fraud as it related to title of the real property. The trial court denied summary judgment as to Plaintiff's claims of fraud and punitive damages relating to loss of his personal property. Plaintiff appeals.
The threshold issue to consider is whether plaintiff's appeal is premature, and therefore, not properly before this Court. "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). This Court has stated:
There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) "if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review."
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996); see also N.C. Gen. Stat. § 1-277(a) (2005); see also N.C. Gen. Stat. § 7A-27(d)(1) (2005).
Here, plaintiff appeals from an order of partial summary judgment. "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). Furthermore, the trial court did not certify the case for immediate appeal pursuant to Rule 54(b).
We further note that plaintiff fails to include a statement in his brief stating the grounds for interlocutory review. N.C.R. App. P. 28(b)(4) requires that the brief contain a statement of the grounds for appellate review containing "sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." "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[.]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
Accordingly, because there was no final judgment in this case, nor were there any substantial rights of the parties affected, we hold that this appeal is premature, and therefore, dismiss it as interlocutory.
Appeal Dismissed.
Judges MCGEE and STROUD concur.
Report per Rule 30(e).