Summary
In Hill v. West, 168 N.C. App. 595, 608 S.E.2d 416 (2005) (unpublished), as in the case at bar, plaintiffs brought suit against multiple defendants. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), the trial court dismissed two of the six defendants with prejudice, for plaintiffs' failure to state a claim upon which relief could be granted.
Summary of this case from TUCK v. TUROCIOpinion
No. COA04-160
Filed 15 February 2005 This case not for publication
Appeal by plaintiffs from order entered 28 October 2003 by Judge Knox V. Jenkins, Jr., in Johnston County Superior Court. Heard in the Court of Appeals 22 September 2004.
Lucas, Bryant, Denning Ellerbe, P.A., by Sarah Ellerbe, for plaintiffs-appellants. Bailey Dixon, L.L.P., by Kenyann Brown Stanford and Hannah G. Styron, for defendants-appellees C.F. West, Inc., Charles F. West, Sr., and Annette West. No brief filed on behalf of defendant-appellee Teresa Henson West. No brief filed on behalf of defendant-appellee Charles F. West, Jr. No brief filed on behalf of defendant-appellee Richard Lester.
Johnston County No. 02 CVS 3062.
This litigation arose out of a traffic accident occurring when defendant Teresa Henson West, who was intoxicated, crossed over a highway median while driving a van owned by defendant C.F. West, Inc. Plaintiffs appeal from an order granting summary judgment to defendants C.F. West, Inc., Charles F. West, Sr., and Annette West. Because the underlying lawsuit is still pending with respect to Teresa Henson West and the trial court did not include a Rule 54(b) certification in its order, we dismiss the appeal as interlocutory.
Facts
Defendant C.F. West, Inc. ("the Company") is a construction business based in New Bern, North Carolina, operated by the family of Teresa West's husband, Charles F. West, Jr. Charles F. West, Sr. and his wife Annette West are Charles West, Jr.'s parents and serve respectively as President and Secretary/Treasurer of the Company. Charles West, Jr. and defendant Richard Lester are employees of the Company. Teresa West worked for the Company from 1996 to 1997, but has not been employed by it since that time.
On 21 January 2001, Charles West, Jr. and Teresa West were married, but estranged. Nonetheless, Teresa was staying for the weekend at her husband's home on Howell Road in New Bern. Charles West, Jr. knew that his wife did not have a driver's license; that, even so, she had on several occasions driven her own vehicle and, without permission, his vehicle; and that she had been convicted in 1999 of driving without a license and without insurance. Charles West, Sr. testified that he told Teresa, the week before the accident, that his company's work vehicles were off limits.
At that time, because the Company did not own a garage, it was the practice of the Company to leave one or more of its vehicles at the Howell Road residence when they were not in use. Although it was the Company's stated policy to keep its vehicles locked when not in use, with the keys in the possession of an authorized employee, Lester testified that it was common practice for employees to leave the keys on the vehicle's console.
On 20 January 2001, Lester parked a van owned by the Company at the Howell Road residence and left it unlocked with the keys on the console. The van remained there overnight. On 21 January 2001, the day of the accident, Charles West, Jr. was working on a construction site with his father, and Teresa was at the Howell Road residence by herself. After becoming intoxicated, she found the keys in the unlocked van and set off in the van for an unknown destination.
Shortly after she left the Howell Road residence she passed her husband who was returning home from work. Charles West, Jr. immediately turned around and tried to follow her, but when he was unable to keep up, he turned around again and went back to Howell Road. After his father arrived a few minutes later, the two men drove towards Teresa's mother's house, where they assumed she had been going.
At that time, plaintiff Harvey Gene Hill was traveling west on U.S. Highway 70 with his wife Regina and son Hayden. Teresa, who was driving east on the same highway, crossed over the median and crashed into the Hill family vehicle, seriously injuring Hayden Hill. Charles West, Jr. and his father arrived shortly after the accident occurred. Plaintiffs filed suit in Johnston County Superior Court against Teresa West, Charles West, Jr., Charles West, Sr., Annette West, and the Company on 16 October 2002. Plaintiffs subsequently added Lester as a defendant on 18 December 2002. Each of the defendants filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim for relief. The trial court granted the motion only as to Lester and Charles West, Jr. on 17 February 2003. The remaining defendants, except for Teresa West, filed a motion for summary judgment on 20 August 2003. On 28 October 2003, the trial court granted the motion, leaving Teresa West as the only defendant in the litigation. Plaintiffs have appealed the 28 October 2003 order.
Discussion
Although none of the parties in this case have addressed whether the summary judgment order was immediately appealable, it is well-settled that we must examine the issue of the interlocutory nature of an appeal sua sponte. "Sound policy exists for the refusal of the appellate courts to entertain appeals from interlocutory orders. This same sound policy requires the appellate courts to make inquiry as to the appealability of a case even though the question is not raised by the parties." Shaver v. N.C. Monroe Constr. Co., 54 N.C. App. 486, 487, 283 S.E.2d 526, 527 (1981) (dismissing appeal as interlocutory).
An order is interlocutory if it does not dispose fully of a case, but rather requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy. Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Because plaintiffs' claims against Teresa White are still pending, the summary judgment order appealed by the plaintiffs is an interlocutory order. An interlocutory order is immediately appealable only if (1) the order is final as to some claims or parties and the trial court has certified pursuant to Rule 54(b) of the Rules of Civil Procedure that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost in the absence of an immediate appeal. Currin Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003).
Since the trial court did not include a Rule 54(b) certification in the summary judgment order, plaintiffs are entitled to pursue this appeal only if that order deprived them of a substantial right that would be lost if we dismissed their interlocutory appeal. An appellant bears the burden of establishing the existence of a substantial right. Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). Consequently, Rule 28(b)(4) of the Rules of Appellate Procedure mandates that appellants' briefs include "[a] statement of the grounds for appellate review." With respect to interlocutory appeals for which there is no Rule 54(b) certification, "the [appellants'] statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4). Plaintiffs' brief, in violation of Rule 28(b)(4), fails to include a statement of grounds for appellate review or any other explanation as to why an interlocutory appeal should be allowed. As we have previously stressed, "[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. . . ." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Nevertheless, we have reviewed the record and briefs and can identify no substantial right that will be lost to plaintiffs in the absence of an immediate appeal. We therefore dismiss the appeal as interlocutory.
Dismissed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).