Opinion
No. COA12–66.
2012-07-3
Angela BROWN, Phillip Moore and Tangela Properties LLC, Plaintiffs, v. Ken LINGAFELT and Michael Minter, Individually and Pine Creek Development LLC, Defendants.
Thurman, Wilson, Boutwell & Galvin, P.A., by James P. Galvin, for plaintiff-appellants. Guy L. Forcucci for defendant-appellee Michael Minter.
Appeal by plaintiff-appellants from order entered 29 September 2011 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 18 June 2012. Thurman, Wilson, Boutwell & Galvin, P.A., by James P. Galvin, for plaintiff-appellants. Guy L. Forcucci for defendant-appellee Michael Minter.
ELMORE, Judge.
Angela Brown, Phillip Moore, and Tangela Properties LLC (plaintiffs) appeal from Judge W. David Lee's 29 September 2011 order denying summary judgment. Plaintiffs appeal from an interlocutory order but fail to make any argument that the order deprives them of a substantial right. Accordingly, we dismiss the appeal.
On 10 September 2010, plaintiffs filed a breach of contract complaint against Ken Lingafelt, Michael Minter, and Pine Creek Development LLC (defendants). Plaintiffs allege that defendants failed to repurchase nine unsold lots from them as required by the terms of a real estate development agreement. Defendant Minter filed an answer to the complaint, and plaintiffs obtained a default judgment against defendant Lingafelt. On 19 August 2011, plaintiffs filed a motion for summary judgment. Defendant Minter filed a cross-motion for summary judgment on 12 September 2011. On 29 September 2011, Judge Lee entered an order denying both motions for summary judgment. Plaintiffs appealed.
Parties have an appeal of right to this Court “[f]rom any final judgment of a superior court[.]” N.C. Gen.Stat. § 7A–27(b) (2011). “An order is not final, and therefore interlocutory, if it fails to determine the entire controversy between all the parties.” Plummer v. Kearney, 108 N.C.App. 310, 312, 423 S.E.2d 526, 528 (1992). “The denial of summary judgment is not a final judgment, but rather is interlocutory in nature. We do not review interlocutory orders as a matter of course.” McCallum v. North Carolina Co-op. Extension Service of N.C. State University, 142 N.C.App. 48, 50, 542 S.E.2d 227, 230 (2001) (citation omitted).
Here, Judge Lee's order denying summary judgment is interlocutory, and thus not automatically appealable. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C.App. 711, 713, 582 S.E.2d 321, 323 (2003). In order to appeal an interlocutory order, an appellant must demonstrate that the trial court certified its order for immediate appeal pursuant to Rule 54(b) of our Rules of Civil Procedure or that the order deprives the appellant of a substantial right. Id. There is no Rule 54(b) certification in this case, nor would it be an appropriate case for Rule 54(b) certification. See Knighten v. Barnhill Contr. Co., 122 N.C.App. 109, 111, 468 S.E.2d 564, 565 (1996) (“The denial of a motion for summary judgment is not a final judgment and is generally not immediately appealable even if the trial court has attempted to certify it for appeal under Rule 54(b).”) (citation omitted). Therefore, plaintiffs must show that Judge Lee's order affects a substantial right.
We note that Rule 28(b)(4) of Rules of the Appellate Procedure requires the appellant to include in its brief to this Court a “statement of grounds for appellate review.... When an appeal is interlocutory, the 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) (2012); Johnson v. Lucas, 168 N.C.App. 515, 520, 608 S .E.2d 336, 339,aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005) (appeal dismissed for appellant's failure to comply with Rule 28(b)(4)).
The statement of the grounds for appellate review contained in plaintiffs' brief reads: “Judge Lee's order denying summary judgment is a final judgment and appeal therefore lies to the Court of Appeals pursuant to N.C. Gen.Stat. § 7A–27(b).” As we have already discussed, however, Judge Lee's order denying summary judgment is interlocutory and not a final judgment. Nowhere in their brief do plaintiffs assert that Judge Lee's order deprives them of a substantial right that would be lost without immediate appellate review.
“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.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994); see also Munden v. Courser, 155 N.C.App. 217, 219, 574 S.E.2d 110, 112 (2002). The appellate courts can only hear matters that are properly brought before them by the litigants. Therefore, we dismiss the appeal.
Dismissed. Judges HUNTER, Robert C., and McCULLOUGH concur.
Report per Rule 30(e).