Opinion
No. COA10-34
Filed 3 August 2010 This case not for publication
Appeal by petitioners from order entered 29 July 2009 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 26 May 2010.
Holland O'Connor, P.L.L.C., by W.A. Holland, Jr., and Jennifer S. O'Connor, for petitioner-appellants. Narron, O'Hale Whittington, P.A., by Jason W. Wenzel, for Yelvington respondent-appellee. Law Office of Philip C. Shaw, by Philip C. Shaw, for West respondent-appellees.
Johnston County No. 08 SP 448.
Background
Between 1943 and 1952, Arthur Noble West, Sr., and his wife, Cecile Moore West, purchased several parcels of real property on Holts Lake in Johnston County, North Carolina (the "property"), as tenants by the entirety. The parcels were adjoined as they were purchased, and became a single tract of land with lake frontage. Upon Arthur's death intestate on 26 March 1956, Cecile became the sole owner of the property. When Cecile died intestate, she left her undivided interest in the property to her children Bertha West Upchurch, Estelle West Stewart, and Arthur Noble West, Jr., as tenants in common.
Bertha West Upchurch later died, and left by will her undivided one-third interest in the property to her daughter, Patricia K. Yelvington. Estelle West Stewart also passed away, leaving by will her undivided one-third interest in the property to Perry and Dana S. Draper (the "Drapers"). After these devisements following Cecile's death, the owners of the property, as tenants in common with each having a one-third undivided interest, became the Drapers, Ms. Yelvington, and Arthur Noble West, Jr., and his wife (the "Wests").
On 25 April 2008, the Drapers filed a petition to partition with the Clerk of Superior Court of Johnston County, North Carolina. Ms. Yelvington filed a response to the petition on 9 May 2008 also requesting a partition of the property. On 9 June 2008, the Wests filed an answer to the petition for partition asking the trial court to order the sale of all standing timber on the property in addition to a request for partition.
The Clerk of Superior Court of Johnston County conducted a hearing on 2 September 2008, and denied the sale of timber prior to a partition of the property. In a separately entered order the same day, the clerk appointed James Cash, Cecil Heavener, and Rollins Johnson as commissioners to partition the property with one-third of the property to be allotted to each tenant in common.
On 12 February 2009, the commissioners filed a report with the clerk allotting a portion of the property to each party, providing an access and utility easement, and outlining the details of the sale of the standing timber on the property. On 28 April 2009, the clerk entered an order in accordance with the commissioners' report. The Wests gave notice of appeal to the superior court on 7 May 2009 requesting a hearing de novo from the clerk's order.
Judge Thomas H. Lock conducted a hearing on 16 and 17 June 2009, and entered an order on 29 July 2009: (1) vacating the report of the commissioners; (2) discharging James Cash, Cecil Heavener, and Rollins Johnson as commissioners; and (3) declaring that new commissioners "shall" be appointed to repartition the subject property. On 11 August 2009, the Drapers filed a notice of appeal to this Court.
Grounds for Appeal
In support of grounds for review by this Court, the Drapers argue that, although this appeal is interlocutory, the order entered by the trial court affects a substantial right. The substantial rights alleged by the Drapers are (1) the rights in their land and (2) the additional financial burden thrust upon them by having to repeat the partition process. Ms. Yelvington joins the Drapers in acknowledging the interlocutory nature of this appeal, and claims that a substantial right exists due to the additional financial burden imposed by the recommencement of the partition action. The Wests, conversely, agree with the order entered by the trial court, and argue that the case should be remanded to continue with the appointment of new commissioners to partition the subject property a second time.
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." Cagle v. Teachy, 111 N.C. App. 244, 247, 431 S.E.2d 801, 803 (1993). Given that Judge Lock vacated the order of the commissioners and stated in subpart 3 of his own order that new commissioners "shall" be appointed to partition the property, this action is still pending before the trial court and is thus interlocutory.
"Generally, there is no immediate right of appeal from interlocutory orders and judgments." Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). "An interlocutory order may be immediately appealed in only two circumstances: (1) when the trial court, pursuant to N.C.R. Civ. P. 54(b), enters a final judgment as to one or more but fewer than all of the claims or parties and certifies that there is no just reason to delay the appeal; or (2) when the order deprives the appellant of a substantial right that would be lost absent appellate review prior to a final determination on the merits." High Rock Lake Partners, LLC v. North Carolina Dept. Of Transp., ___ N.C. App. ___, ___, 693 S.E.2d 361, 366 (2010). "`A substantial right is one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Musick v. Musick, ___ N.C. App. ___, ___, 691 S.E.2d 61, 63 (2010) (quoting Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 262 (2001).
In this case, no Rule 54 certification appears in the order from the trial court, and we therefore examine whether a substantial right has been shown necessitating immediate review.
The Drapers allege that a substantial right in their land has been affected by the superior court's order, and they cite N.C. Dep't of Transp. v. Stagecoach Village, 360 N.C. 46, 619 S.E.2d 495 (2005) [ Stagecoach] as supporting authority. In Stagecoach, the Supreme Court of North Carolina held that interlocutory orders containing questions which affect title to property are subject to immediate review. Id. at 48, 619 S.E.2d at 496. However, the case at hand cannot be said to be analogous, because the parties' respective interests in the title to the land is not disputed. While this case remains pending before the superior court, each of the three parties, as tenants in common, still hold their undivided interest in the property. The real source of the controversy on appeal is the order entered by Judge Lock; and because a challenge or threat to actual title is not present, we cannot agree with the Drapers that a substantial right will be adversely affected or lost without immediate review under the reasoning of Stagecoach. See Dep't of Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999) (no substantial right recognized where the trial court's order declared that four separate tracts of land were unified in a condemnation proceeding).
Additionally, at oral argument, counsel for Ms. Yelvington argued that this Court could hear this appeal due to the in rem nature of the case. The case cited by counsel, Hinnant v. Wilder, 122 N.C. 149, 29 S.E. 221 (1898), does not offer any support for this proposition, and through extensive research of our own, no relevant law suggests that an in rem proceeding confers a substantial right in and of itself. Thus, we decline to apply such a principle here. Ms. Yelvington's counsel further argues in her brief that review in this Court is proper because the superior court's order: (1) "[i]n effect determines the action and prevents a judgment from which appeal might be taken"; (2) "[d]iscontinues the action"; or (3) "[g]rants or refuses a new trial[.]" N.C. Gen. Stat. § 7A-27(d)(2)-(4) (2009). As we have already discussed, this action is still pending, and has not provided a determination as to the parties' rights with respect to their interests in the land. Moreover, as to subsection (3), the trial court's order does not grant a new trial by virtue of the appointment of new commissioners. We accordingly conclude that this case is not properly before this Court under subsections (2)-(4) of section 7A-27(d) of our General Statutes.
The Drapers and Ms. Yelvington lastly argue that the financial costs associated with the recommencement of the partition action are so injurious as to rise to a substantial right. As a general rule, this Court has held that, "`[A]voiding the time and expense of trial is not a substantial right justifying immediate appeal.'" Reid v. Cole, 187 N.C. App. 261, 266-67, 652 S.E.2d 718, 721-22 (2007) (quoting Lee v. Baxter, 147 N.C. App. 517, 520, 556 S.E.2d 36, 38 (2001)); see also Embler, 143 N.C. App. at 166, 545 S.E.2d at 262 ("Interlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right."); Ward v. Wake Cty. Bd. of Educ., 166 N.C. App. 726, 732, 603 S.E.2d 896, 901 (2004) (Industrial Commission's order denying employee's appeal without prejudice held not to affect substantial right even though employer argued that "if their appeal is dismissed, they will `be required to incur significant litigation costs.'"); LaFalce v. Wolcott, 76 N.C. App. 565, 568, 334 S.E.2d 236, 238 (1985) ("[T]he mere avoidance of a rehearing on a motion or the avoidance of a trial when summary judgment is denied is not a `substantial right.'"); Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 336, 299 S.E.2d 777, 781 (1983) ("avoidance of a portion of an administrative hearing is not a `substantial right'"); Bailey v. Gooding, 301 N.C. 205, 210, 270 S.E.2d 431, 433-34 (1980) (appeal dismissed where trial court's order forced plaintiffs to undergo full trial rather than trial only on damages). Applying the same rationale here, we similarly conclude that the financial costs associated with the recommencement of the partition action do not affect a substantial right.
The record shows that no party will be prejudiced by dismissal of this appeal. Therefore, because no Rule 54(b) certification for appellate review appears in the order and no substantial right has been shown to be affected, we decline to review this case. Appellate review may be sought in this Court upon final disposition if a satisfactory result is not achieved. Based on the foregoing, this appeal is
Dismissed.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).