Opinion
No. COA12–291.
2012-11-20
Edward W. SPAINHOWER, Plaintiff v. Patricia SPAINHOWER, Defendant.
Valentine & McFayden, P.C., by Stephen M. Valentine, for plaintiff-appellant. No brief filed for defendant-appellee.
Appeal by plaintiff from order entered 26 September 2011 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 5 November 2012. Valentine & McFayden, P.C., by Stephen M. Valentine, for plaintiff-appellant. No brief filed for defendant-appellee.
CALABRIA, Judge.
Edward W. Spainhower (“plaintiff”) appeals from the trial court's order granting Patricia Spainhower's (“defendant”) motion to dismiss plaintiff's claims, but denying plaintiff's motion for summary judgment and motion to dismiss defendant's counterclaims. We dismiss the appeal as interlocutory.
On 17 June 2009, plaintiff filed a complaint alleging false imprisonment and false arrest, intentional infliction of emotional distress and malicious prosecution, and seeking punitive damages. On 4 September 2009, defendant filed an answer, counterclaims, and motions to dismiss plaintiff's claims pursuant to N.C. Gen.Stat. § 1A1, Rule 12(b)(6) and N.C. Gen.Stat. § 1A–1, Rule 12(b)(7). Defendant alleged intentional infliction of emotional distress and also sought punitive damages and sanctions. Plaintiff filed a reply to defendant's counterclaims. On 11 February 2011, plaintiff filed a motion for judgment on the pleadings. On 26 September 2011, the trial court entered an order granting defendant's motion to dismiss all of plaintiff's claims, and denying plaintiff's motion to dismiss defendant's counterclaims and motion for summary judgment. Plaintiff appeals.
Plaintiff contends that the trial court erred by denying his motion for judgment on the pleadings, denying his motion to dismiss defendant's counterclaims and granting defendant's motion to dismiss. However, plaintiff appeals from an interlocutory order, but has not included a N.C. Gen.Stat. § 1A–1, Rule 54(b) certification or an explanation that the order deprives him of a substantial right.
Parties have an appeal of right to this Court “[f]rom any final judgment of a superior court[.]” N.C. Gen.Stat. § 7A–27(b) (2011).
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. 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. City of Durham, 231 N.C. 357, 361–62, 57 S.E.2d 377, 381 (1950) (citations omitted).
In the instant case, the trial court's order granting defendant's motion to dismiss is interlocutory. This order is not a final judgment because the trial court also denied plaintiff's motion to dismiss defendant's counterclaims and the counterclaims remain unresolved. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C.App. 711, 713, 582 S.E.2d 321, 323 (2003). When an appeal is interlocutory, the trial court may certify its order for immediate appeal pursuant to N.C. Gen.Stat. 1A–1, Rule 54(b). Id.
[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay .... Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (quotation marks and citations omitted).
Absent a certification by the trial court, when an appeal is interlocutory N.C.R.App. P. 28(b)(4) requires the appellant to include in its brief to this Court a “statement of the grounds for appellate review” that contains “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); Johnson v. Lucas, 168 N.C.App. 515, 519, 608 S.E.2d 336, 338,aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005) (appeal dismissed for appellant's failure to comply with Rule 28(b)(4)).
In the instant case, since the trial court's order is not a final judgment, it is interlocutory. There is no certification by the trial court that there was no just reason for delay according to Rule 54(b). Furthermore, plaintiff has not included in his brief a statement of the grounds for appellate review asserting that the trial court's order deprives him of a substantial right that would be lost without immediate appellate review. Since plaintiff has failed to show how the trial court's order deprives him of a substantial right, we dismiss the appeal as interlocutory. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994) (It is not this Court's duty “to construct arguments for or find support for appellant's right to appeal from an interlocutory order” rather, “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.”).
Dismissed. Judge HUNTER, ROBERT C. and McCULLOUGH concur.
Report per Rule 30(e).