Opinion
No. COA08-972.
Filed 19 May 2009.
Guilford County No. 07CVS4277.
Appeal by plaintiff from order entered 2 April 2008 by Judge Richard W. Stone in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2008.
Rightsell Eggleston, LLP, by Donald P. Eggleston, for plaintiff-appellant. Ross Law Firm, by R. Matthew Van Sickle and C. Thomas Ross, for defendant-appellee.
Plaintiff Southeast Land Co., LLC appeals from the trial court's entry of summary judgment in favor of defendant Liberty Mutual Insurance Company. Because the grant of summary judgment did not resolve defendant's counterclaim against plaintiff, and plaintiff has failed to show that the trial court certified its order for immediate appellate review under Rule 54(b) of the Rules of Civil Procedure or that the order affects a substantial right, we dismiss plaintiff's appeal as being interlocutory and not properly before this Court.
Facts
On 26 November 2002, APAC-Carolina, Inc. ("APAC") entered into a contract with Project Homestead, Inc. ("PHI") to construct portions of the infrastructure for a housing development known as King's Landing in Greensboro, North Carolina. Both the contract and the City of Greensboro required APAC to purchase a performance bond for the benefit of PHI and the City of Greensboro. Defendant issued a performance bond in the amount of $800,735.00. PHI last paid APAC under the contract on 11 May 2003, and on 22 October 2003, APAC stopped construction on the project. APAC filed a lien against PHI on 29 January 2004 in the amount of $153,653.50. That same day, PHI filed for bankruptcy.
Pursuant to an order by the federal bankruptcy court, plaintiff purchased the project from PHI's trustee on 20 April 2005. Nearly a year later, on 18 April 2006, PHI's trustee assigned to plaintiff all of PHI's rights to the performance bond guaranteed by defendant. On 20 March 2007, plaintiff filed suit to recover under the bond, alleging that it had discovered that portions of the construction performed by APAC were incomplete or defective; that APAC had refused to repair or complete the construction; and that defendant had subsequently refused to pay plaintiff for damages under the bond.
Defendant filed an answer and counterclaim on 18 May 2007. In its counterclaim, defendant sought to recover from plaintiff the sum of $153,653.50 based on amounts allegedly owed APAC by PHI. Defendant moved for summary judgment on 29 February 2008, and, in an order entered 2 April 2008, the trial court granted defendant summary judgment and dismissed plaintiff's complaint. The order did not resolve defendant's counterclaim. Plaintiff filed a notice of appeal on 8 May 2008.
Defendant's counterclaim was calendared to be heard by the trial court on 23 June 2008. Plaintiff and defendant jointly filed a "Consent Motion to Stay Proceedings," requesting that the trial court stay further proceedings regarding defendant's counterclaim pending resolution of plaintiff's appeal to this Court. Defendant filed a motion to dismiss plaintiff's appeal in the trial court on 27 August 2008, contending that plaintiff failed to timely file the record on appeal. Defendant subsequently withdrew its motion to dismiss from the trial court after the record on appeal was docketed in this Court on 28 August 2008. Defendant then filed in this Court a motion to dismiss plaintiff's appeal for various appellate rules violations, including plaintiff's failure to provide in its appellant's brief a statement of grounds for appellate review as required by Rule 28(b)(4) of the Rules of Appellate Procedure.
Discussion
As an initial matter, we must determine whether this appeal is properly before this Court. Generally, "there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. 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. Dep't of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). In contrast, "[a] final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court." Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).
Because the trial court's order granting summary judgment to defendant with respect to plaintiff's claim did not resolve defendant's counterclaim, the order was interlocutory and ordinarily not appealable. Nevertheless, an interlocutory order "is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed." Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002), appeal dismissed and disc. review denied, 357 N.C. 63, 579 S.E.2d 390 (2003). In either of these two circumstances, "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, plaintiff does not contend that the trial court certified its order for immediate appellate review pursuant to Rule 54(b). Rather, plaintiff points to the "Consent Motion to Stay Proceedings," claiming that the joint motion stayed further proceedings on defendant's counterclaim pending the outcome of this appeal. Contrary to plaintiff's contention, however, appellate jurisdiction cannot be conferred by the consent of the parties. See Feldman v. Feldman, 236 N.C. 731, 734, 73 S.E.2d 865, 867 (1953) ("[I]t is axiomatic that jurisdiction cannot be conferred by consent, waiver, or estoppel. Jurisdiction rests upon the law and the law alone. It is never dependent upon the conduct of the parties." (internal citation omitted)).
With respect to whether the trial court's order affects a substantial right, "[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. The appellant's burden is embodied in Rule 28 of the Rules of Appellate Procedure, which requires the appellant's brief to contain "[a] statement of the grounds for appellate review. . . . When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4).
Plaintiff's brief does not contain any statement of grounds for appellate review at all, much less a statement "contain[ing] sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4). Plaintiff, moreover, neither moved to amend its brief to include such a statement nor, after defendant raised the issue in its motion to dismiss the appeal, presented any argument that a substantial right would be lost absent immediate review. "Where the appellant fails to carry the burden of making . . . a showing to the court [that appellate jurisdiction exists], the appeal will be dismissed." Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338, aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005); accord Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254 (holding appellant failed to satisfy burden and dismissing appeal where "[appellant] presented neither argument nor citation to show this Court that [appellant] had the right to appeal the order dismissing its counterclaims"). Accordingly, this appeal is dismissed.
Dismissed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).