Opinion
No. COA02-878
Filed 4 March 2003 This case not for publication.
Appeal by plaintiff from judgment entered 22 March 2002 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 24 February 2003.
Bailey Dixon, L.L.P., by Philip A. Collins, for unnamed defendant-appellee Nationwide Mutual Insurance Company. E. Gregory Stott for plaintiff-appellant.
Wake County No. 01 CVS 005176.
Arthur G. Raymond, Jr. ("plaintiff") appeals the award of summary judgment to unnamed defendant Nationwide Mutual Insurance Company ("Nationwide"). We dismiss the appeal as interlocutory.
I. Background
Plaintiff filed a complaint on 1 May 2001, seeking compensation for damage to his automobile sustained in an accident with defendant, Connie Dian Markham. Plaintiff's automobile insurer, Nationwide, filed an answer to the complaint as an unnamed defendant, asserting a counterclaim for declaratory relief to establish that plaintiff's insurance policy did not provide underinsured motorist coverage for damages to personal property. After a hearing, the trial court entered summary judgment in favor of Nationwide, finding it had "no underinsured motorist property damage coverage obligation for any of Plaintiff's claims set forth in this action." Plaintiff filed timely notice of appeal from this judgment.
II. Issue
The question presented is whether plaintiff's appeal is interlocutory.
III. Interlocutory Appeals
"`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.'" Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (quoting N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995)). As a general matter, there is no right to appeal from an interlocutory order prior to entry of the final judgment. Id. at 141, 526 S.E.2d at 669. A party may immediately appeal an interlocutory order in only two circumstances: (1) when the order is final as to at least some but not all claims or parties, and the trial court certifies pursuant to N.C.R. Civ. P. 54(b) that there is no just reason for delay; or (2) when the order deprives the appellant of a substantial right that would be lost absent an immediate appeal. Id.; N.C.G.S. §§ 1-277(a), 7A-27(d) (2001). The appellant's brief must state the grounds for immediate appellate review. N.C.R. App. P. 28(b)(4) (2003).
The judgment does not resolve plaintiff's tort suit against the named defendants and is interlocutory. Plaintiff's brief to this Court states no basis for immediate appeal of this interlocutory judgment as required by Rule 28(b)(4), and we find none. The trial court did not certify the judgment pursuant to Rule 54(b). No substantial right of plaintiff's will be prejudiced by delaying his appeal until entry of a final judgment. Plaintiff may challenge the award of summary judgment to Nationwide if and when he is awarded damages for which Nationwide might be liable. See Corbett v. Smith, 131 N.C. App. 327, 327, 507 S.E.2d 303, 304 (1998) (citing Corbett v. Smith, 125 N.C. App. 211, 480 S.E.2d 60 (1997) (unpublished) (dismissing interlocutory appeal of order awarding summary judgment to plaintiff's insurer)).
"Where an appealing party has no right to appeal, an appellate court should on its own motion dismiss the appeal even though the question of appealability has not been raised by the parties themselves." State v. School, 299 N.C. 351, 360, 261 S.E.2d 908, 914 (1979) (citing Waters v. Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978)), opinion certified on rehearing, 299 N.C. 731, 265 S.E.2d 387, appeal dismissed, 449 U.S. 807, 66 L.Ed.2d 11-12 (1980).
IV. Conclusion
We dismiss the instant appeal for lack of jurisdiction.
Dismissed.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).