Opinion
No. COA11–1293.
2012-04-3
In the Matter of the WILL OF Emanuel ABBRUZZESE, Deceased.
Marshall, Williams & Gorham, LLP, by F. Murphy Averitt, III, for Petitioner/Propounder–Appellant. West & Smith, LLP, by Stanley W. West, for Respondents/Caveators–Appellees.
Appeal by propounder from order entered 18 August 2011 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 22 February 2012. Marshall, Williams & Gorham, LLP, by F. Murphy Averitt, III, for Petitioner/Propounder–Appellant. West & Smith, LLP, by Stanley W. West, for Respondents/Caveators–Appellees.
ERVIN, Judge.
Propounder Theodore V. Abbruzzese appeals from an order affirming a determination by the Clerk of Superior Court of New Hanover County that the estate of Decedent Emanuel Abbruzzese should be reopened and remanding this proceeding to the Clerk for resolution of the other matters addressed in the underlying petition. After careful consideration of the record in light of the applicable law, we conclude that Propounder has attempted to appeal from an unappealable interlocutory order and that his appeal should, for that reason, be dismissed.
I. Factual Background
On 15 August 2009, Decedent died. In a Last Will and Testament dated 10 March 2009, Decedent named Propounder, his brother, as the executor and primary beneficiary of Decedent's estate. On 28 August 2009, Propounder presented the 10 March 2009 will for admission to probate, resulting in the issuance of letters testamentary and a certificate of probate. On 16 December 2009, Propounder filed a final accounting, which the Clerk approved.
On 16 June 2011, Gerald A. Abbruzzese, Michael Joseph Abbruzzese, Kristopher K. Kukhahn, Denise Jollie and Michele J. Abbruzzese filed a caveat to the 10 March 2009 will in which they alleged that the probated will was invalid on the grounds that (1) the will had not been properly executed; (2) Decedent lacked the legal capacity to make the will; and (3) the will was procured by undue influence on the part of Propounder. In addition, Caveators Gerald A. Abbruzzese and Michele J. Abbruzzese filed a petition seeking to (1) have the estate reopened; (2) have Propounder disqualified as the estate's personal representative; (3) have a new personal representative appointed; and (4) have appropriate measures taken to preserve the assets of the estate. On 16 June 2011, the Clerk entered an order reopening the estate and transferring the matter to the Superior Court for trial.
The individuals who petitioned to reopen Decedent's estate will be referred to as Caveators throughout the remainder of this opinion.
On 5 July 2011, Propounder noted an appeal to the Superior Court from the 16 June 2011 order. Propounder's appeal came on for hearing before the trial court at the 1 August 2011 civil session of New Hanover County Superior Court. On 18 August 2011, the trial court entered an order affirming the Clerk's decision to reopen Decedent's estate and remanding this case to the Clerk for resolution of the other issues raised in the Caveators' petition, including the naming of a new personal representative and the preservation of the estate's assets during the pendency of the caveat proceeding. Propounder noted an appeal to this Court from the trial court's order.
II. Legal Analysis
On appeal, Propounder contends that the trial court erred by (1) affirming the reopening of Decedent's estate on the grounds that the Clerk lacked authority to act in that manner and (2) remanding the case to the Clerk for resolution of the other issues raised by Caveators' petition on the grounds that Caveators lacked standing to petition for the reopening of Decedent's estate and the revocation of the letters testamentary that had been issued to Propounder. We need not, however, address the merits of Propounder's challenge to the trial court's order given that Propounder's appeal has been taken from an unappealable interlocutory order.
“A judgment is either interlocutory or the final determination of the rights of the parties.” N.C. Gen.Stat. § 1A–1, Rule 54(a). “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. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). As a general proposition, “there is no right of immediate appeal from interlocutory orders and judgments.” Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 291, 420 S.E.2d 426, 428 (1992) (citation omitted). “The general rule precluding immediate appellate review of interlocutory orders is intended ‘to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard[.]’ “ Newcomb v. County of Carteret, ––– N . C.App. ––––, ––––, 701 S.E.2d 325, 335 (2010) (quoting Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)), disc. review denied,365 N.C. 212, 710 S.E.2d 26 (2011). However, “a party is permitted to appeal from an interlocutory order when ‘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, 379, 444 S.E.2d 252, 253 (1994) (quoting Southern Uniform Rentals v. Iowa Nat'l Mutual Ins. Co., 90 N.C.App. 738, 740, 370 S.E.2d 76, 78 (1988), and citing N.C. Gen.Stat. § 1–277).
“[A] right is substantial only when it ‘will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.’ “ Brown v. Brown, 77 N.C.App. 206, 208, 334 S.E.2d 506, 508 (1985) (quoting Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 335, 299 S.E.2d 777, 780 (1983)), disc. review denied, 315 N.C. 389, 338 S.E.2d 878 (1986). “No hard and fast rules exist for determining which appeals affect a substantial right.” Estrada v. Jaques, 70 N.C.App. 627, 640, 321 S.E.2d 240, 249 (1984) (citation omitted). “ ‘It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought is entered.’ “ Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982) (quoting Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)).
Although Propounder candidly concedes that his appeal has been taken from an interlocutory order, he encourages us to address his appeal on the merits on the grounds that the trial court's order affects a substantial right. More specifically, Propounder contends that the relief requested in the Caveators' petition is premature and that the trial court's order effectively deprives him of property that has been distributed in accordance with the terms of the 10 March 2009 will prior to a hearing on the merits in the caveat proceeding. After a thorough review of the record, we conclude that the trial court's order does not affect a substantial right.
As a general proposition, orders which do not address the substantive claims made in the underlying action and which simply allow the action to proceed do not impair substantial rights. See Dance v. Manning, –––N.C.App. ––––, ––––, 700 S.E.2d 145, 146–47 (2010) (holding that the plaintiff's appeal from an order denying her motion to have an out of state attorney admitted pro hac vice did not affect a substantial right because the “denial of [plaintiff's] motion only addressed the issue of counsel ... but not the substantive claims made by plaintiff in her complaint”); see also Howard v. Ocean Trail Convalescent Center, 68 N.C.App. 494, 495, 315 S.E.2d 97, 99 (1984) (dismissing the defendants' appeal from the denial of their dismissal motions on the grounds that the trial court's decision simply allowed the action to proceed without impairing any of the defendants' rights in a manner which could not be corrected in an appeal from a final judgment). Similarly, in this case, the trial court's order did not address the substantive issues involved in the caveat action. Instead, the challenged order simply upheld the Clerk's decision to reopen Decedent's estate during the pendency of the caveat. Dance, ––– N.C.App. at ––––, 700 S.E.2d at 147;N.C. Gen.Stat. § 28A–23–5 (stating that, “[i]f, after an estate has been settled and the personal representative discharged, other property of the estate shall be discovered, or if it shall appear that any necessary act remains unperformed ..., or for any other proper cause, the clerk ... may order that said estate be reopened.” (emphasis added)). Propounder's right to retain property distributed in accordance with the 9 March 2010 will cannot be lost or irremediably affected by the trial court's decision because his right to retain that property will ultimately be decided following the entry of a final judgment in the caveat proceeding. Simply put, a decision to reopen Decedent's estate during the pendency of the caveat cannot serve to deprive Propounder of his right to receive property bequeathed to him in the 10 March 2009 will, so that the challenged order does not impair any of Propounder's rights in such a manner that such an adverse impact could not be corrected in an appeal from a final judgment in the caveat proceeding. Howard, 68 N.C.App. at 495, 315 S.E.2d at 99. Thus, since Propounder has failed to demonstrate that the trial court's order affected a substantial right, his appeal should be dismissed.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Propounder has, in this case, attempted to appeal from an unappealable interlocutory order. As a result, given that we lack jurisdiction over Propounder's appeal, we must dismiss it.
APPEAL DISMISSED. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).