Opinion
No. COA02-760
Filed 3 June 2003 This case not for publication
Appeal by defendants from order entered 27 March 2002 by Judge Michael E. Helms in Wilkes County Superior Court. Heard in the Court of Appeals 12 May 2003.
SMITH, JAMES, ROWLETT COHEN, L.L.P., by Norman B. Smith, and L.G. Gordon, Jr., for plaintiff-appellee. WOMBLE CARLYLE SANDRIDGE RICE, PLLC, A Professional Limited Liability Company, by Allan R. Gitter and Alison R. Bost, for defendant-appellants.
Wilkes County No. 01 CVS 2472.
This appeal evolves out of an action filed by Northwestern National Bank ("Northwestern") formerly known as Wilkes National Bank against Western and Southern Life Insurance Company ("Southern Life") and George Manos ("Manos"). On or about 20 December 2001, Northwestern filed a complaint alleging claims of negligence and breach of contract on the part of Southern Life and its agent, Manos. Southern Life and Manos thereafter filed a joint pre-answer motion to dismiss Northwestern's complaint, pursuant to North Carolina Rules of Civil Procedure 12(b)(6), asserting that Northwestern's claims were barred by the statute of limitations contained in North Carolina General Statutes § 58-58-120. Northwestern responded, alleging that North Carolina General Statutes § 58-58-120 is unconstitutional on equal protection grounds and raising the defense of equitable estoppel to the statute of limitations defense. The motion was heard on 11 March 2002. After hearing the evidence and arguments of counsel, the court denied the motion, based upon the unconstitutionality of North Carolina General Statutes § 58-58-120. The court specified in its order "that there is no just cause to delay the defendants' appeal, since this ruling concerns a substantial right and is immediately appealable." Defendants filed notice of appeal on 2 April 2002, and defendant insurance company timely perfected its appeal.
At the outset, we must consider the issue of whether this appeal is properly before this Court. While neither Southern Life nor Northwestern have raised the issue in their briefs, this Court may on its own motion address the interlocutory nature of an appeal. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). An order is interlocutory if it does not dispose of the case as to all parties, "but leaves it for further action by the trial court in order to settle and determine the entire controversy." Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). As a general rule, a party may not immediately appeal from an interlocutory order. Howerton v. Grace Hospital, Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442 (1996). There are, however, two longstanding exceptions allowing immediate review of interlocutory orders:
(1) if the trial court has entered 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) if the delay of an immediate appeal would affect a substantial right.
Abe, 130 N.C. App. at 334, 502 S.E.2d at 881; see also N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). Significantly, this Court has previously determined that in either instance, "it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Furthermore, "it is not the duty of this Court to construct arguments for or find support for [an] appellant's right to appeal an interlocutory order." Id. at 380, 444 S.E.2d at 254. We also note that effective 31 October 2001, Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure provides that "[w]hen an appeal is based on Rule 54(b) of the Rules of Civil Procedure," the appellant shall include a statement in his brief "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." N.C.R. App.P. 28(b)(4) (2001). In interlocutory appeals based upon a substantial right, the appellant is required to include a statement in his brief "contain[ing] sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." Id.
In the case sub judice, the trial court's attempt to certify this matter as immediately appealable was not appropriate. See McNeil v. Hicks, 111 N.C. App. 262, 264, 431 S.E.2d 868, 869 (1993), disc. review denied, 335 N.C. 557, 441 S.E.2d 118 (1994) (noting that Rule 54(b) certification is not dispositive "when the order appealed from is interlocutory"); see CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 154 (1999) ("a Rule 54(b) certification is effective to certify an otherwise interlocutory appeal only if the trial court has entered a final judgment with regard to a party or a claim in a case which involves multiple parties or multiple claims"); see also Henderson v. LeBauer, 101 N.C. App. 255, 264, 399 S.E.2d 142, 147, disc. review denied, 328 N.C. 731, 404 S.E.2d 868 (1991) (providing that notwithstanding a trial court's attempt to certify a matter as immediately appealable, if there is no substantial right affected and the appeal is interlocutory, that matter is not immediately appealable). The order appealed from, denying defendants' joint motion to dismiss pursuant to North Carolina Rules of Civil Procedure section 12(b)(6), is interlocutory as there has been no final judgment as to any of the parties or claims. See O'Neill v. Bank, 40 N.C. App. 227, 231, 252 S.E.2d 231, 234 (1979) ("the denial of a Rule 12(b)(6) motion to dismiss is not a final judgment or order"). The denial of a Rule 12(b)(6) merely continues the action in the trial court for further litigation. Country Club of Johnston County, Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. App. 159, 164, 519 S.E.2d 540, 544 (1999).
Further, the trial court's assertion that the "ruling concerns a substantial right," also fails. Contrary to the mandates of well-settled case law and North Carolina Rules of Appellate Procedure 28(b)(4), none of the parties to this appeal have set forth any argument as to the affectation of a substantial right, so as to make this otherwise interlocutory matter immediately appealable. Moreover, after a careful review of the record and existing legal authority, we perceive no substantial right that would be affected absent immediate appellate review. This Court has previously stated that avoidance of a trial, no matter how tedious or unnecessary, is not a substantial right entitling an appellant to immediate review. See Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780-81 (1983). Here, the trial court's order denying defendants' joint motion to dismiss plaintiff's order (albeit on the basis of the alleged unconstitutionality of N.C. Gen. Stat. § 58-58-120) merely continues this matter for further litigation in the trial court.
Accordingly, this appeal is dismissed as interlocutory.
Dismissed.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).