[1]The threshold issue on appeal is whether the 9 November
order and the 20 October judgment are properly before this Court.
Concerning the order granting a new trial, section 1-277(a) of our
General Statutes provides: “An appeal may be taken from every
judicial order or determination of a judge of a superior or
district court . . . which . . . grants or refuses a new trial.” N.C. Gen. Stat. § 1-277(a) (1999). However, this Court has
previously held that the aforementioned portion of section 1-277(a)
is inapplicable to orders granting partial new trials on the issue
of damages.
Insurance Co. v. Dickens, 41 N.C. App. 184, 187, 254
S.E.2d 197, 198 (1979). Therefore, the trial court's “order
granting a new trial solely as to the issue of damages . . . is
interlocutory and . . . not subject to immediate appellate review.”
Johnson v. Garwood, 49 N.C. App. 462, 463, 271 S.E.2d 544, 544-45
(1980) (citations omitted).
[2]We now examine whether the underlying judgment fixing the
issue of liability is proper for immediate review, given the trial
court's order granting plaintiff's partial new trial motion. We
first note that there are no North Carolina appellate cases
addressing the specific situation presented by the present appeal.
However, in
Insurance Co. , this Court found that an appeal from
a trial court's order “accept[ing] the jury's verdict fixing
liability” but ordering a new trial solely on the issue of damages
was interlocutory and not immediately appealable.
Insurance Co.,
41 N.C. App. at 186, 254 S.E.2d at 198. We find
Insurance Co.
dispositive of the issue presented
sub judice.
In
Insurance Co., the plaintiff brought a subrogation action
seeking recovery of damages to its insureds' home. Following
trial, the
Insurance Co. jury returned a verdict finding that the
plaintiff was entitled to subrogation, that the negligence of the
defendants caused damage to insureds' home, and that the insureds'
damages totaled $200. In one order, the trial court accepted theverdict on the issues of subrogation and defendants' liability, but
set aside the verdict on the issue of damages and granted
plaintiff's motion for a new trial limited to the issue of damages.
The defendants appealed the trial court's order.
This Court found that the order was interlocutory and
unappealable, as review of the order in that case would promote
“fragmentary, premature, and unnecessary appeals[.]”
Id. see also
Schuch v. Hoke, 82 N.C. App. 445, 447, 346 S.E.2d 313, 315 (1986)
(holding that partial summary judgment order fixing liability but
reserving issue of damages for trial was interlocutory and not
immediately appealable). Given the trial court's “accept[ance]” of
the underlying jury verdict in the order from which the defendants
appealed, the
Insurance Co. Court recognized that the
appellants
could possibly challenge not only the grant of a partial new trial
but also issues concerning the underlying trial proceedings in the
premature appeal. However, the Court found that the appellants'
right to review of all trial court proceedings was preserved for
final review by “duly entered exceptions on appeal from the final
judgment.”
Insurance Co., 41 N.C. App. at 186, 254 S.E.2d at 198.
In
accordance with our holding in
Insurance Co., we find that,
in light of the trial court's order granting a new trial on the
issue of damages, the underlying judgment fixing the issue of
liability is likewise interlocutory. We note that
Insurance Co. is
slightly distinguishable from the case
sub judice in that the
Insurance Co. litigants appealed an order both “accept[ing]” the
jury's verdict and granting a partial new trial and not, as in thepresent case, a separate judgment and order granting a partial new
trial. However, given that both the partial new trial order in the
case
sub judice and the order appealed in
Insurance Co.
“accept[ed]” the jury's verdict fixing the issue of liability, we
find the cases indistinguishable in substance.
Cf. Bowden v. Latta,
337 N.C. 794, 797, 448 S.E.2d 503, 505 (1994)(per curiam)(holding
that appeal of order granting partial new trial on issue of damages
and appeal of underlying judgment based upon issue of contributory
negligence was proper where trial court did not accept jury's
verdict on issue of liability but granted JNOV on issue of
contributory negligence);
Desmond v. City of Charlotte, 142 N.C.
App. 590, 592, 544 S.E.2d 269, 271 (2001) (following
Bowden given
similar facts).
Furthermore, similar to the appeal in
Insurance Co., reviewing
issues concerning the underlying judgment while the issue of
damages remains pending below would contravene the well-established
principle that appellate procedure “is designed to eliminate the
unnecessary delay and expense of repeated fragmentary appeals, and
to present the whole case for determination in a single appeal from
the final judgment.”
Raleigh v. Edwards, 234 N.C. 528, 529, 67
S.E.2d 669, 671 (1951). Defendants
sub judice challenge issues
concerning the underlying jury verdict, but, like the appellants in
Insurance Co., have preserved those issues for final review by
properly excepting to alleged errors in the record. For the
aforementioned reasons, we conclude that the underlying judgment
fixing the issue of liability is likewise interlocutory. Although the 9 November order granting a partial new trial
and
the 20 October judgment fixing the issue of liability are
interlocutory, they may nonetheless be appealable if so allowed by
the exceptions contained in North Carolina Rule of Civil Procedure
54(b) or North Carolina General Statutes sections 1-277 and 7A-
27(d).
See N.C. Gen. Stat. §§ 1A-1, Rule 54(b); 1-277; and 7A-27(d)
(1999). Because the trial court did not certify either the order
granting a partial new trial or the underlying judgment for
immediate review under Rule 54(b), defendants' right to an
immediate appeal, if one exists, depends on whether the order and
judgment affect a substantial right.
Hudson-Cole Dev. Corp. v.
Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 312 (1999).
Whether an order or judgment affects a substantial right is to
be determined on a case-by-case basis.
Embler v. Embler, 143 N.C.
App. 162, 166, 545 S.E.2d 259, 262 (2001). A “substantial right”
is a right that “itself must be 'substantial'” and that “must be
lost, prejudiced or be less than adequately protected by exception
to entry of the interlocutory order.”
J & B Slurry Seal Co v. Mid-
South Aviation, Inc., 88 N.C. App. 1, 5-6, 362 S.E.2d 812, 815
(1987) (citations omitted);
see also Waters v. Personnel, Inc., 294
N.C. 200, 208, 240 S.E.2d 338, 344 (1978)
. “'[I]t is the
appellant's burden to present argument in his brief to this Court
to support acceptance of the appeal.'”
Lee v. Mut. Community Sav.
Bank, 136 N.C. App. 808, 810, 525 S.E.2d 854, 856 (2000) (quoting
Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879,881 (1998)).
In the present case, defendants do not address the
appealability of either the 9 November order or 20 October judgment
in their brief or otherwise on appeal.
It 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[s
have] the burden of showing this Court that
the order deprives the appellant[s] 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, 380, 444
S.E.2d 252, 254 (1994). As defendant fails to argue why the order
and judgment appealed affect a substantial right, we dismiss these
orders as interlocutory and not immediately appealable.
Appeal dismissed.
Judges MARTIN and TYSON concur.
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