Opinion
NO. COA10-1351
08-16-2011
DEWAYNE BRAYBOY CHAVIS, Plaintiff-Appellant, v. ELEANOR MARIE SIETMAN, Defendant-Appellee.
Kathleen Arundell Widelski for Plaintiff-Appellant. Kathleen Arundell Widelski, pro se. No brief for Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Mecklenburg County No. 08 CVD 024776
Appeal by Plaintiff and Plaintiff's attorney from an order dated 28 June 2010 by Judge Ronald L. Chapman in District Court, Mecklenburg County. Heard in the Court of Appeals 7 June 2011.
Kathleen Arundell Widelski for Plaintiff-Appellant.
Kathleen Arundell Widelski, pro se.
No brief for Defendant-Appellee.
McGEE, Judge.
DeWayne Brayboy Chavis (Plaintiff) and Eleanor Marie Sietman (Defendant) are the biological parents of a minor child (the child). Plaintiff filed a complaint against Defendant for child custody and visitation on 12 November 2008. Plaintiff filed an amended complaint for visitation on 18 August 2009. Plaintiff and Defendant were ordered to attend child custody mediation and parent education on 18 September 2009. Defendant filed an answer and counterclaim on 29 September 2009. The case was heard in the trial court on 2 June 2010. Plaintiff's counsel was late to the hearing, and Plaintiff failed to appear at the hearing. The trial court found that "Plaintiff's [counsel] failed to keep herself informed of [the trial court's] scheduling of [Plaintiff's] case for trial[,]" and that she had thereby "failed to comply with the 26th Judicial District Family Court Division Local Rules for Domestic Cases" (the Local Rules). The trial court entered an order awarding temporary custody of the child to Defendant and continued the hearing on permanent custody and visitation. The trial court entered a second order, dated 28 June 2010, which awarded Defendant $400.00 in attorney's fees, assessable to Plaintiff and Plaintiff's counsel, Kathleen Arundell Widelski (together, Appellants), to compensate Defendant regarding Plaintiff's counsel's failure to comply with the Local Rules. Plaintiff's counsel paid the $400.00 to Defendant's counsel.
Appellants filed a motion to stay and a "Motion to Note Exceptions on the Record for Purposes of Appeal" regarding the trial court's order assessing attorney's fees on 8 July 2010. Plaintiff's counsel gave notice of appeal on 26 July 2010 and Plaintiff gave notice of appeal on 4 August 2010. The trial court entered an order granting Appellants' motion to stay and noting Plaintiff's exceptions. The trial court further ordered Defendant's counsel to return the $400.00 and for "Plaintiff's counsel [to] post the $400.00 as an appeal bond[.]"
Although not addressed by Appellants in their briefs, we must initially determine whether this appeal is properly before us. "An order is interlocutory if it does not determine the entire controversy between all of the parties." Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998) (citation omitted). "Generally, there is no right of immediate appeal from an interlocutory order." Id. (citation omitted).
There is a three-step analysis: 1) A judgment which is final to all claims and parties is immediately appealable. 2) If a judgment is not final as to all parties and claims, it is appealable if it is final to a party or issue and has been certified for appeal by the trial court under N.C.G.S. Sec. 1A-1, Rule 54(b). 3) If it is neither final to all claims and parties, nor final to a party or issue and certified for appeal, a judgment is immediately appealable if it affects a substantial right of the parties.New Bern Assoc. v. The Celotex Corp., 87 N.C. App. 65, 67, 359 S.E.2d 481, 483 (1987) (citing Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 168-69, 265 S.E.2d 240, 245 (1980)). The trial court's 28 June 2010 order is not final as to all claims and parties in the present case. Additionally, the trial court did not certify the 28 June 2010 order for immediate appeal under N.C. Gen. Stat. § 1A-1, Rule 54(b). Thus, the 28 June 2010 order is appealable only if it affects Appellants' substantial rights.
Generally, "an order to pay attorney's fees as a sanction does not affect a substantial right." Long v. Joyner, 155 N.C. App. 129, 134, 574 S.E.2d 171, 175 (2002) (citations omitted). See also Bowman v. Alan Vester Ford Lincoln Mercury, 151 N.C. App. 603, 611-12, 566 S.E.2d 818, 824 (2002); Cochran v. Cochran, 93 N.C. App. 574, 577, 378 S.E.2d 580, 582 (1989). In the present case, the 28 June 2010 order refers to the award of attorney's fees as a "sanction" against Appellants to compensate Defendant for Plaintiff's counsel's failure to comply with the Local Rules. Appellants make no argument in their briefs that the 28 June 2010 order affects any substantial rights of Appellants. Because the award of attorney's fees as a sanction does not affect a substantial right of Appellants, the 28 June 2010 order is not immediately appealable.
We additionally note that, at the 2 June 2010 hearing, the trial court referred to the attorney's fee award at issue as "an interim award of attorneys fees[.]" However, even if the attorney's fee award is considered an interim award of attorney's fees rather than a sanction, "it does not determine the entire controversy between all of the parties[,]" Abe, 130 N.C. App. at 334, 502 S.E.2d at 881 (citation omitted), and does not affect a substantial right of Appellants, cf. Bell v. Moore, 31 N.C. App. 386, 388, 229 S.E.2d 235, 237 (1976) (dismissing appeal from order staying collection of costs as interlocutory where "[f]inal judgment on costs would be entered at the termination of the second suit or, if plaintiffs failed to re-file, upon the expiration of the statute of limitations"). Accordingly, Appellants' appeal is interlocutory and is not properly before us. Appellants' appeal is dismissed.
Dismissed.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).