Opinion
No. COA12–548.
2012-11-6
CITY OF CLINTON, Plaintiff, v. GLOBAL CONSTRUCTION, INC.; Carlton Lanier; Hobbs, Upchurch & Associates, P.A. and The Hanover Insurance Company, Defendants.
Ward and Smith, P.A., by E. Bradley Evans, for plaintiff-appellee. Mario M. White for defendant-appellant Carlton Lanier.
Appeal by defendant Carlton Lanier from orders entered 24 January 2011 and 18 March 2011 by Judge Lucy N. Inman in Sampson County Superior Court. Heard in the Court of Appeals 10 October 2012. Ward and Smith, P.A., by E. Bradley Evans, for plaintiff-appellee. Mario M. White for defendant-appellant Carlton Lanier.
HUNTER, JR., ROBERT N., Judge.
Defendant Carlton Lanier appeals the trial court's orders denying his motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Upon review, we dismiss Lanier's appeal.
I. Facts & Procedural History
In 2005, the City of Clinton (the “City”) contracted to build utility improvements in its Dollar Branch drainage area (the “Project”). The City selected Hobbs, Upchurch & Associates, P.A. (“Hobbs”), a North Carolina corporation, to administrate the Project. Around May 2007, Hobbs began accepting public bids for the Project.
Global Construction, Inc. (“Global”) is a North Carolina general contractor. Carlton Lanier is Global's President. Global submitted a bid for the project on 7 June 2007 and in August 2007 was awarded the contract for $1,531,141.30. The Hanover Insurance Company (“Hanover”), a Massachusetts corporation, issued a performance bond.
Under the terms of the construction contract (the “Contract”), Global was to submit monthly pay applications to Hobbs for work completed. Every pay application contained the following “Contractors Certification,” endorsed by a Global representative:
The undersigned Contractor certifies that to the best of their knowledge, information and belief the work covered by this payment estimate has been completed in accordance with the contract documents, that all amounts have been paid by the contractor for work for which previous payment estimates was issued and payments received from the owner, and that current payment shown herein is now due.
Based upon the applications, the City would pay Global the amount due.
Global began submitting applications in September 2007. This and subsequent applications were approved by Hobbs and routinely paid. On 24 October 2007, a Change Order increased the Contract Price by $121,565.00 to a total of $1,652,706.30. On 23 September 2008, Global submitted a second and final Change Order (the “Final Change Order”) reducing the Contract price by $100,232.78 to a revised total of $1,552,473.52. The City executed the Final Change Order on 29 September 2008.
The same day Global submitted the Final Change Order it also submitted its final pay application (the “Final Pay Application”). The Final Pay Application erroneously listed the City's previous payments to Global at $1,225,417.72. Thus, according to the Final Pay Application, the City owed Global $327,055.80 (the revised contract price of $1,552,473.52 minus $1,225,417.72 of alleged previous payments). Because the City had already paid Global $1,449,853.31, it only owed $102,620.21.
Before making its final payment to Global, the City noted (i) Global completed the Project 126 working days late; (ii) Global failed to return 40 manhole rings and covers; and (iii) Global caused three sewer spills. The City reduced the Final Pay Application $49,917.52 for these penalty costs. The City's payments totaled $1,726,991.59, $174,518.07 in excess of the $1,552,473.52 revised Contract price.
In July 2010, a City audit discovered the $174,518.07 overpayment. The City demanded defendants pay reimbursement; demand was refused and on 10 September 2010 the City filed this action.
In its Complaint, the City alleged: (1) breach of contract against Global and Hanover; (2) negligence against Global, Lanier, and Hanover; (3) fraud against Global and Lanier; (4) negligent misrepresentation against Global and Lanier; (5) conversion against Global and Lanier; (6) unjust enrichment/constructive trust against Global and Lanier; (7) breach of contract against Hobbs; (8) negligence against Hobbs; and (9) negligent misrepresentation against Hobbs. Global and Lanier filed an Answer on 22 December 2010 and a First Amended and Restated Answer on 3 January 2011. These Answers included motions to dismiss under Rule 12(b)(6) the claims for negligence, fraud, negligent misrepresentation, unjust enrichment, and conversion. On 24 January 2011 and again on 18 March 2011, the trial court granted the motions to dismiss the City's negligence claim, but denied the motions to dismiss all other claims.
Lanier filed a Notice of Appeal on 20 February 2012.
II. Analysis
On appeal, Lanier argues (i) the trial court erred in denying his motion to dismiss the City's claims of negligent misrepresentation, fraud, conversion, and unjust enrichment/constructive trust; (ii) the trial court erred in denying his motion to dismiss the City's negligence claim; and (iii) Lanier cannot be held liable as an agent of Global for acts done within the scope of his agency.
We do not have jurisdiction to hear Lanier's appeal because his Notice of Appeal fails to designate the order from which his appeal is taken.
“[A] default precluding appellate review on the merits necessarily arises when the appealing party fails to complete all of the steps necessary to vest jurisdiction in the appellate court. It is axiomatic that courts of law must have their power properly invoked by an interested party.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 364 (2008).
“Any party entitled by law to appeal from a judgment or order rendered by a judge in superior or district court in a civil action ... may take appeal by giving notice of appeal within the time, in the manner, and with the effect provided in the rules of appellate procedure.” N.C. Gen.Stat. § 1–279.1 (2011). According to the North Carolina Rules of Appellate Procedure, the Notice of Appeal must designate, inter alia, “the judgment or order from which appeal is taken[.]” N.C. R.App. P. 3(d). “The provisions of Rule 3 [of the North Carolina Rules of Appellate Procedure] are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal.” Stephenson v. Bartlett, 177 N .C.App. 239, 241, 628 S.E.2d 442, 443 (2006) (citation omitted) (internal quotation marks omitted).
Lanier's Notice of Appeal addresses “the judgment and order of Superior Court Judge Lucy N. Inman filed on the 19th day of January, 2012, which judgment granted plaintiff's motion for summary judgment as to all claims.” Nothing in the record indicates the existence of this order and Lanier makes no arguments on appeal regarding such an order. Rather, the substance of Lanier's appeal deals with the trial court's orders granting the motions to dismiss the City's negligence claim, but denying the motions to dismiss all other claims. Thus, we do not have jurisdiction to hear the instant appeal because Lanier failed to comply with North Carolina Rule of Appellate Procedure 3(d). “A jurisdictional default ... precludes the appellate court from acting in any manner other than to dismiss the appeal.” Dogwood, 362 N.C. at 197, 657 S.E.2d at 365. Consequently, we dismiss Lanier's appeal for lack of jurisdiction.
We acknowledge that “[i]f, on a motion ... to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” N.C. Gen.Stat. § 1A–1, Rule 12(b). Nonetheless, nothing in the record indicates that the trial court entered an order on summary judgment.
In the alternative, Lanier's appeal can be dismissed as interlocutory.
In North Carolina, “[a] final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court. An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (citations omitted).
“[W]hen an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review ‘sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.’ “ Johnson v. Lucas, 168 N.C.App. 515, 518, 608 S.E.2d 336, 338 (quoting N.C.R.App. P. 28(b)(4)), aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). “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).
In the present case, although Lanier argues his appeal is “taken from the final judgment and order” of the trial court, the only trial court orders provided in the record are the two identical orders from 24 January 2011 and 18 March 2011 granting the motions to dismiss the City's negligence claim, but denying the motions to dismiss all other claims. Nothing in the record indicates the trial court disposed of all the City's claims, “leaving nothing to be judicially determined between [the parties] in the trial court.” Veazey, 231 N.C. at 361–62, 57 S.E.2d at 381 (citations omitted). Thus, Lanier's appeal is interlocutory. Since Lanier has made no arguments that the trial court's 24 January 2011 and 18 March 2011 orders affect a “substantial right,” we can dismiss his appeal as interlocutory. See Jeffreys, 115 N.C. at 380, 444 S.E .2d at 254.
III. Conclusion
Because we do not have jurisdiction to decide the instant case, we dismiss the appeal.
Dismissed. Judges HUNTER, ROBERT C., and CALABRIA concur.
Report per Rule 30(e).