Opinion
No. 04-1728.
Filed 4 October 2005.
Buncombe County No. 04 CVD 2746.
Appeal by defendants from an order entered 9 July 2004 by Judge Shirley H. Brown in Buncombe County District Court. Heard in the Court of Appeals 19 September 2005.
Patla, Straus, Robinson Moore, P.A., by Cindy M. Rice, for plaintiffs-appellees. Harold Rowell and Pamela Rowell, defendant-appellants, pro se.
Harold and Pamela Rowell ("defendants") appeal a preliminary injunction order entered 9 July 2004. For the reasons stated herein, we dismiss this appeal as interlocutory.
Plaintiffs filed a complaint in Buncombe County District Court on 25 June 2004, alleging claims of trespass, undue influence, fraud, breach of fiduciary duty, negligence, and other equitable remedies. Plaintiffs also filed a motion for preliminary injunction (along with supporting affidavits) seeking to enjoin defendants from further communication with Charles and Elizabeth Cunningham ("the Cunninghams") or their employees, and seeking to evict defendants from occupancy of the Cunninghams' home. This motion was heard by the district court on 9 July 2004. After reviewing the complaint, motion, and affidavits submitted in support thereof, and hearing the arguments of plaintiffs' counsel and defendant Harold Rowell, the trial court allowed plaintiffs' motion and entered a preliminary injunction, enjoining defendants from further communication with the elder Cunninghams or their employees, and ordering defendants to cease occupancy of the Cunninghams' home. The court further ordered that plaintiffs provide $20,000.00 security "for the payment of such costs and damages as may be incurred or suffered by [defendants]." Defendants filed notice of appeal on 9 August 2004.
At the outset, we note that plaintiffs have filed a motion to dismiss defendants' appeal, which is presently pending before the Court. In the motion, plaintiffs contend that defendants' appeal from an order allowing plaintiffs' motion for preliminary injunction is interlocutory. Moreover, plaintiffs note that defendants have not offered any grounds justifying immediate appellate review of this interlocutory matter, in violation of N.C.R. App. P. 28(b)(4) and well-settled case law. In addition, plaintiffs allege that many of the issues set forth in the record and defendants' brief have not been properly preserved for appellate review, "and as to those issues, this appeal should be dismissed." Plaintiffs contend "this appeal was taken or continued for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation," and ask that this Court also "award such sanctions as it deems appropriate under [N.C.R. App. P.] 34(b)(2)."
As noted by plaintiffs in their motion to dismiss, the subject appeal is one from an order granting plaintiffs' motion for preliminary injunction. It is well-settled that such an order is interlocutory. A.E.P. Industries v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983). Generally, an interlocutory order is not immediately appealable. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). A party, however, may be entitled to immediate appeal pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27(d), or N.C.R. Civ. P. 54(b). Id.
This Court recently reminded:
It is well established that the appellant bears the burden of showing to this Court that the appeal is proper. First, when 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." N.C.R. App. P., Rule 28(b)(4). . . .
"It is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal, . . . and not the duty of this Court to construct arguments for or find support for appellant's right to appeal[.]" Where the appellant fails to carry the burden of making such a showing to the court, the appeal will be dismissed.
Johnson v. Lucas, ___ N.C. App. ___, ___, 608 S.E.2d 336, 338 (2005) (citations omitted). In Johnson, the appellant failed to acknowledge the interlocutory nature of his appeal in his statement of grounds for appellate review, in violation of N.C.R. App. P. 28(b)(4). The appellant also failed to call to the Court's attention any substantial right that would be affected absent immediate appellate review, in violation of well-settled case law. As a consequence, the Court dismissed the appeal as interlocutory. Johnson, ___ N.C. App. ___, 608 S.E.2d 336.
Defendants have acted similarly in this case. Their statement of the grounds for appellate review is without mention of the interlocutory nature of the instant appeal, and their brief, as a whole, contains no discussion in that regard. Since defendants have not complied with N.C.R. App. P. 28(b)(4), nor carried their burden of showing their appeal to be proper, we allow plaintiffs' motion to dismiss this appeal as interlocutory. We, however, decline to award plaintiffs sanctions at this time.
Dismissed.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).