Opinion
No. COA09-1687
Filed 18 May 2010 This case not for publication
Appeal by defendant from orders and judgment entered 30 June 2009 by Judge William F. Southern, III in Stokes County District Court. Heard in the Court of Appeals 28 April 2010.
J. Clark Fischer for plaintiff-appellee. The Dawson Law Firm, PLLC, by Kenneth Clayton Dawson, for defendant-appellant.
Stokes County No. 06 CVD 483.
Defendant Ida Maria Gray (now Maria Renee Zacharewicz) appeals from the trial court's orders denying her motion to amend her pleadings and striking her counterclaim as well as its judgment on the pleadings in favor of plaintiff Dennie H. Gray. As the trial court's orders and judgment do not resolve all the claims between the parties, they are interlocutory. Because the trial court did not certify its orders or judgment pursuant to Rule 54(b) of the Rules of Civil Procedure for immediate review and defendant fails to demonstrate that the court's orders and judgment affect a substantial right, we dismiss this appeal.
Facts
On 23 June 2006, plaintiff filed a complaint seeking an absolute divorce from defendant. Defendant filed a pro se answer on 20 July 2006 admitting the allegations regarding divorce and asserting a counterclaim for equitable distribution. After retaining counsel, defendant filed an "Amended Answer and Counterclaim," in which she asserted counterclaims for alimony and post-separation support as well as an "Amended Counterclaim for Equitable Distribution," asking for an unequal distribution of the marital estate. The parties were divorced on 14 September 2006.
The parties entered into a consent order, entered by the trial court on 13 October 2006, permitting defendant to amend her counterclaim "as set forth in her `Amended Answer and Counterclaim.'" On 31 October 2006, plaintiff filed a "Response to Amended Answer and Counterclaim," in which he also asked for an unequal distribution of the marital estate. On 19 September 2007, plaintiff filed a motion pursuant to Rule 41 requesting the trial court to enter an order involuntarily dismissing defendant's alimony and equitable distribution counterclaims for failure to prosecute the claims. In an order entered 8 November 2007, the trial court denied plaintiff's motion to dismiss defendant's counterclaims, appointed a guardian ad litem for defendant, and ordered defendant to file an affidavit in support of her equitable distribution counterclaim within 30 days.
On 5 March 2009, plaintiff filed a motion for judgment on the pleadings with respect to defendant's alimony and post-separation support claims. On 6 May 2009, defendant filed a pleading labeled as a "Reply to Counterclaim[,] Response to Motion, and Further Counterclaim." On 7 May 2009, plaintiff filed a motion to (1) strike defendant's "Further Counterclaim," (2) impose sanctions on defendant for filing an "[un]recognized" pleading, and (3) dismiss defendant's "Further Counterclaim" with prejudice. The next day, 8 May 2009, plaintiff filed a "Reply" to defendant's "Further Counterclaim," in which he demanded a jury trial. After the trial court conducted a hearing on the parties' outstanding motions, the court entered two separate orders on 30 June 2009, in which the court denied defendant's motion to amend her pleadings and struck defendant's "Further Counterclaim." In a judgment entered the same day, the trial court entered judgment on the pleadings in favor of plaintiff on defendant's counterclaims for alimony and post-separation support. Defendant timely appealed to this Court.
Discussion
Defendant argues for the reversal of the trial court's order denying her motion to amend her pleadings, its order striking her "Further Counterclaim," and its judgment on the pleadings in favor of plaintiff. The dispositive issue on appeal, however, is whether this appeal is properly before this Court for review.
Generally, "there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. American Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). "An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). A final order or judgment, in contrast, is one that "disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).
Here, both the trial court's orders denying defendant's motion to amend her pleadings and striking defendant's "Further Counterclaim" are interlocutory. See Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) ("An order denying a motion to amend pleadings is an interlocutory order. . . ."); Buchanan v. Rose, 59 N.C. App. 351, 352, 296 S.E.2d 508, 509 (1982) ("[A]n order denying a motion to amend pleadings is an interlocutory order, and is not immediately appealable."); see also Estate of Harvey v. Kore-Kut, Inc., 180 N.C. App. 195, 198, 636 S.E.2d 210, 212 (2006) (holding appeal from trial court's order striking defense from answer was interlocutory). The trial court's judgment, granting plaintiff's motion for judgment on the pleading with respect to defendant's alimony and post-separation counterclaims, but leaving unresolved the parties' equitable distribution claims, is likewise interlocutory. See Contracting Co. v. Rowland, 29 N.C. App. 722, 724, 225 S.E.2d 840, 842 (concluding that judgment on pleadings was interlocutory where it "disposed of fewer than all the claims"), disc. review denied, 290 N.C. 660, 228 S.E.2d 452 (1976).
An interlocutory order or judgment is, however, immediately appealable if (1) the order or judgment is final as to some but not all of the claims or parties and the trial court certifies that there is no just reason to delay the appeal pursuant to Rule 54(b) or (2) the trial court's decision deprives the appellant of a substantial right that would be lost absent immediate review. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). In either situation, "it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal. . . ." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).
Here, neither of the trial court's orders nor its judgment are certified for immediate appellate review under Rule 54(b). Thus, appellate jurisdiction exists, if it exists at all, under the substantial-right exception. When relying on this exception, "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 [or judgment] 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).
In her brief, defendant simply cites to N.C. Gen. Stat. § 1-277 (2009) and N.C. R. Civ. P. 54 as grounds for appellate review, without providing any facts or argument in support of immediate review on the basis that the trial court's interlocutory orders and judgment affect a substantial right. As defendant has not provided any explanation as to how the trial court's orders and judgment affect a substantial right, defendant has failed to establish sufficient grounds for immediate review in this case. See Johnson, 168 N.C. App. at 519, 608 S.E.2d at 338 (dismissing improper interlocutory appeal where appellant's brief contained "no discussion of any substantial right that will be affected if we do not review this order at this time").
This Court has stressed that "[i]t 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, 115 N.C. App. at 380, 444 S.E.2d at 254. See also Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam) ("It is not the role of the appellate courts . . . to create an appeal for an appellant."); Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 389, 663 S.E.2d 320, 322 (2008) ("It is not the role of this Court to create an avenue of appeal not properly asserted in [appellant]'s brief."). Accordingly, we dismiss this appeal.
Dismissed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).