Opinion
No. COA14–912.
03-03-2015
COUNTY OF HARNETT, Plaintiff, v. Randy D. ROGERS, Defendant.
David A. Senter and Jeffrey M. Reichard for plaintiff. Coy E. Brewer, Jr. for defendant.
David A. Senter and Jeffrey M. Reichard for plaintiff.
Coy E. Brewer, Jr. for defendant.
ELMORE, Judge.
This action arises from an ongoing dispute between Harnett County and Randy D. Rogers (Rogers). Rogers appeals from the entry of the trial court's partial summary judgment award in favor of Harnett County on claims of fraud and unfair and deceptive trade practices. We dismiss this appeal because it is interlocutory and premature for our review.
I. Background
The record on appeal shows that Rogers was employed as a right-of-way agent for the Harnett County Department of Public Utilities (HCDPU) from 2006 until January of 2011. His job responsibilities included acquiring easements for water and sewer lines to be constructed across landowners' real property for various HCDPU construction projects, including, but not limited to, the South Central sewer line project (South Central), South Harnett waste water treatment plant expansion project (South Harnett WWTP), and the Cameron Hills water line project (Cameron Hills). Rogers' immediate supervisor was Glenn McFadden (McFadden) and the director of HCDPU was Steven Ward (Ward).
McFadden testified that throughout 2010 and early 2011, Harnett County experienced multiple issues with easement acquisitions on various projects, including the South Central and Cameron Hills projects, which were Rogers' responsibility. For example, according to McFadden, Rogers represented to HCDPU that the water and waste water lines were running through houses, ponds and other structures, which was not the case. Rogers allegedly also provided incorrect easement spreadsheets to HCDPU management and required additional engineering, surveying, consulting and other services. As such, the South Central project was substantially delayed and Harnett County was forced to pay additional fees for extra services.
In addition, McFadden testified that documents were mysteriously disappearing from HCDPU. There is evidence that the alleged missing documents were later found to be anonymously submitted by a person using the pseudonyms “Britt Smith” and “Admiral David Glasgow–Farragut” to the North Carolina Department of Environment and Natural Resources (DENR), the United States Department of Agriculture, the North Carolina Bureau of Investigation, private agencies, the Harnett County Manager, and the Harnett County Board of Commissioners. These business entities also received anonymous tips alleging corruption within HCDPU. Because of the missing documents and tips, DENR delayed the permitting process for the South Harnett WWTP. Harnett County hired the law firm Poyner Spruill, LLP, to investigate the allegations of corruption and missing documents.
Ultimately, Rogers was terminated from his position in January of 2011, when it became evident to McFadden that Rogers was likely causing the aforementioned issues. The record suggests that Rogers may have attempted to derail certain Harnett County projects, because he seemingly believed that the HCDPU was involved in a scheme to defraud taxpayers. After Rogers' termination, Harnett County found a flash drive and a county-issued laptop in Rogers' possession that contained over 300 hours of audio recordings. Rogers admitted to secretly recording conversations involving work-related issues. According to Harnett County, the recordings evidence the fact that Rogers was stealing documents from HCDPU and was attempting to sabotage various HCDPU projects.
On or about 30 April 2012, Harnett County filed an action against Rogers alleging claims of fraud, conversion, larceny by employee, interference with property rights, trespass to chattels, civil conspiracy, unfair and deceptive trade practices, and sought a preliminary and permanent injunction. Thereafter, Harnett County filed a motion for partial summary judgment, arguing there were no genuine issues of material fact with respect to its second claim for relief, fraud, its eighth claim for relief, unfair and deceptive trade practices, its ninth claim of relief, injunction, and defendant's counterclaim.
The trial court granted Harnett County's motion for partial summary judgment in May 2014. The trial court found that Harnett County was entitled to a damages award of $1,735,752.30 for the fraud and unfair and deceptive trade practices claims. In total, the trial court awarded Harnett County treble damages in the amount of $5,207,256.90, plus interest. Rogers appeals the entry of the partial summary judgment order.
II. Interlocutory Order
Although the parties do not raise the issue, we must first consider sua spontewhether an appeal lies from Judge Sasser's order. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (“if an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties”). We do so in the spirit of attempting “to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.” City of Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951). Our Supreme Court has observed, “[t]here is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.” Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (1950).
All judgments and orders are either interlocutory or final in nature. Our Supreme Court has distinguished between final and interlocutory rulings as follows:
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.
Id.at 361–62, 57 S.E.2d at 381 (internal citations omitted). Interlocutory orders ordinarily are not directly appealable. Liggett Grp., Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). This is because “[a]ppellate procedure is designed to eliminate the unnecessary delay and expense of repeated fragmentary appeals, and to present the whole case for determination in a single appeal from the final judgment.” Edwards, 234 N.C. at 529, 67 S.E.2d at 671.
With respect to civil cases, three statutes-N.C. Gen.Stat. § 1–277, N.C. Gen.Stat. § 7A–27, and N.C. Gen.Stat. § 1A–1, Rule 54(b) -permit an immediate appeal to be taken from an interlocutory order or judgment in limited circumstances. First, an interlocutory order can be immediately appealed under N.C. Gen. Stats. §§ 1–277(a) and 7A–27(b)(3)(a) and (b) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review. A substantial right is affected if “there are overlapping factual issues between the claim determined and any claims which have not yet been determined because such overlap creates the potential for inconsistent verdicts resulting from two trials on the same factual issues.” Liggett, 113 N.C.App. at 24, 437 S.E.2d at 677 (quotation omitted). Because N.C. Gen. Stats. §§ 1–277(a) and 7A–27(b)(3)(a) and (b) stray from the policy discouraging fragmented appeals, they are to be strictly construed. See, e.g., Buchanan v. Rose, 59 N.C.App. 351, 352, 296 S.E.2d 508, 509 (1982). In keeping with this strict construction, our courts have required that a substantial right entitling an aggrieved party to an immediate appeal either be one that will work injury to the appellant if the interlocutory ruling is not reviewed before final judgment, Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E .2d 30, 34 (1975), or one that the appellant will lose if the ruling is not reviewed before final judgment. Waters v. Qualified Pers., Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978).
Second, an interlocutory order can be immediately appealed if the order is final as to some, but not all of the claims and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b). Bartlett v. Jacobs, 124 N.C.App. 521, 524, 477 S.E.2d 693, 695 (1996). Rule 54(b) is applicable only to actions in which more than one claim for relief is presented or in which multiple parties are involved. N.C. Gen.Stat. § 1A–1, Rule 54(b) (2013). In these cases, the trial court may enter a judgment that is final as to one or more, but fewer than all, of the claims or parties. Id.In such cases, Rule 54(b) permits the court to determine in the judgment that “there is no just reason for delay” and thereby makes the judgment immediately appealable. Id.“If the action is final as to fewer than all claims or the rights and liabilities of fewer than all parties, but has not been certified for appeal by the trial court under Rule 54(b), no appeal will lie.” Equitable Leasing Corp. v. Myers, 46 N.C.App. 162, 169, 265 S.E.2d 240, 245 (1980). Thus, in order for a judgment in a multiple claim or multiple party action to be immediately appealable under Rule 54(b), the judgment must be: (1) in effect final as to one or more of the claims or parties; and (2) certified for appeal by the trial court.
“[I]t is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). It is not this Court's duty to construct arguments for an appellant's right to appeal from an interlocutory order. Id.at 380, 444 S.E.2d at 254. In addition, the opposing party's consent to have an interlocutory order reviewed is also ineffective. Thomas v. Contract Core Drilling & Sawing, 209 N.C.App. 198, 201, 703 S.E.2d 862, 864–65 (2011) ; Fisher v. E.I. Du Pont De Nemours, 54 N.C.App. 176, 177–78, 282 S.E.2d 543, 544 (1981) (“The parties cannot by stipulation modify the extent of appellate review prescribed in the statute.”) Notably, Rule 28(b) of the North Carolina Rules of Appellate Procedure specifically directs an appellant to include in his brief a statement containing sufficient facts and argument to support appellate review on grounds that the challenged order affects a substantial right. N.C.R.App. P. 28(b)(4).
Here, Judge Sasser granted Harnett County's motion for partial summary judgment on its claims of injunction, fraud, and unfair and deceptive trade practices. Left for further judicial determination were plaintiff's claims of conversion, larceny, interference with property rights, trespass to chattels, and civil conspiracy. “A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett, 113 N.C.App. at 23, 437 S.E.2d at 677. Since the order before us did not dispose of all claims, it is interlocutory.
The record shows that Judge Sasser did not certify his order pursuant to Rule 54(b), which would have signaled to this court that there was no just reason for the delay of our review. Accordingly, our review of the merits of Rogers' appeal would be proper provided only that he successfully convince this Court that immediate appeal is authorized by statute, such as N.C. Gen.Stat. §§ 1–277 or 7A–27.
However, in his brief Rogers fails to recognize that Judge Sasser's order is interlocutory and, therefore, he advances no argument that delaying his appeal would jeopardize a substantial right and cause him an injury that might be averted if the appeal were allowed. When Rogers' counsel was asked during oral arguments whether he had considered the interlocutory nature of this appeal, counsel admitted that he had not done so. Rogers' counsel proceeded to argue that a substantial right was affected merely because the monetary judgment levied against Rogers was substantial. Counsel for Harnett County admitted that, while he had not considered the interlocutory status of this appeal, the parties had consented at the trial court level to proceed with the appeal.
We note that a substantial right is not affected solely because the trial court has awarded a large sum of monetary damages. In addition, the opposing party's consent to have an interlocutory order reviewed is also ineffective. See Thomas, supra.Because multiple claims for relief in this action remain pending at the trial court level and because the trial court did not certify that there was “no just reason for delay” under Rule 54(b), Rogers' appeal is premature. Further, Rogers has failed to show that the challenged order affected a substantial right and will work an injury to him if not corrected before an appeal from the final judgment.
For the reasons set forth above, we conclude that defendant has attempted to appeal from an unappealable interlocutory order. In light of that fact, we lack jurisdiction over defendant's appeal and must dismiss it.
Dismissed.
Judges DAVIS and TYSON concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 21 May 2014 by Judge Douglas B. Sasser in Harnett County Superior Court. Heard in the Court of Appeals 7 January 2015.