Appeal and Error_appealability_interlocutory order_no substantial right
Plaintiff's appeal from an order partially granting defendant's motion to dismiss the
claims for declaratory judgment, fraud, unfair and deceptive trade practices, breaches of
covenants, and attorney fees is dismissed because it is an appeal from an interlocutory order since
the claims for conversion and punitive damages remain, and the appeal does not affect a
substantial right.
Dungan & Mitchell, P.A., by Robert E. Dungan and Shannon
Lovins, for plaintiff-appellant.
Prince, Youngblood & Massagee, by Boyd B. Massagee, Jr. and
Sharon B. Alexander, for defendant-appellee Whitmire.
HUDSON, Judge.
Mills Pointe Homeowner's Association, Inc. (“plaintiff”)
appeals from an order granting in part defendant Joan P. Whitmire's
motion to dismiss. The order is interlocutory, and, plaintiff
having failed to demonstrate that a substantial right will be
affected if plaintiff is not given the right of immediate appeal
from the order, this appeal is dismissed.
The pertinent procedural history is as follows. On 29 April
1999, plaintiff filed a complaint naming as defendants Whitmire,
Gary D. and Virginia M. Morgan (“the Morgans”), Gary D. Morgan
Developer, Inc., and Southwind Enterprises Inc. (“Southwind”). Atall relevant times, Whitmire was the president and secretary of
Southwind. The complaint alleges causes of action for: (1) a
declaratory judgment regarding real property known as the Mills
Pointe Subdivision; (2) fraud against all defendants; (3) unfair
and deceptive trade practices against all defendants, see N.C. Gen.
Stat. § 75-1.1 (1999); (4) breaches of covenants against all
defendants; (5) breaches of fiduciary duties against the Morgans;
(6) conversion against Whitmire and Southwind; (7) attorney's fees
against all defendants; and (8) punitive damages against the
Morgans, Southwind, and Whitmire.
On 2 July 1999, Whitmire and Southwind filed an answer and a
motion to dismiss all causes of action, pursuant to North Carolina
Rule of Civil Procedure 12(b)(6). Pursuant to plaintiff's motions
for entry of default, the trial court entered an order of default
against the Morgans on 23 August 1999, and against Gary D. Morgan
Developer, Inc. on 30 May 2000. After hearing Whitmire's motion to
dismiss, the court granted the motion in part in an order filed 3
July 2000. Specifically, the court dismissed the claims for
declaratory judgment, fraud, unfair and deceptive trade practices,
breaches of covenants, and attorney's fees as to Whitmire.
Plaintiff appeals from the 3 July 2000 order.
Although neither party addressed the interlocutory nature of
plaintiff's appeal, we raise this issue of appealability on our own
motion. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431,
433 (1980). “An order is interlocutory if it does not determine
the entire controversy between all of the parties.” Abe v.Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881
(1998). An order granting a motion to dismiss certain claims in an
action, leaving other claims to go forward, is an interlocutory
order. See Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597
(1985). In the order at issue here, the superior court dismissed
the claims for declaratory judgment, fraud, unfair and deceptive
trade practices, breach of covenants, and attorney's fees, but
allowed the conversion and punitive damages claims against
Whitmire, as well as all of the claims against Southwind, to go
forward. In addition, while the clerk has entered defaults in the
claims against the Morgans, no judgments have been entered on these
claims. Therefore, the order from which plaintiff appeals is
interlocutory.
In general, there is no right to appeal from an interlocutory
order. See, e.g., Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.
App. 377, 379, 444 S.E.2d 252, 253 (1994). However, a party may
appeal an interlocutory order “where the order represents a final
judgment as to one or more but fewer than all of the claims or
parties and the trial court certifies in the judgment that there is
no just reason to delay the appeal,” or “where delaying the appeal
will irreparably impair a substantial right of the party.” Hudson-
Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309,
311 (1999) (internal quotation marks omitted); see N.C. Gen. Stat.
§§ 1A-1, Rule 54(b), 1-277, 7A-27(d) (1999). Here, the trial court
did not certify that there is no just reason to delay the appeal.
Thus, an immediate appeal from the interlocutory order here isproper if delay would irreparably impair a substantial right of
plaintiff.
The party desiring an immediate appeal of an interlocutory
order bears the burden of showing that such appeal is necessary to
prevent loss of a substantial right. See Jeffreys, 115 N.C. App.
at 380, 444 S.E.2d at 254. In Jeffreys, our Court dismissed an
interlocutory appeal when the appellant “presented neither argument
nor citation to show this Court that [it] had the right to appeal
the [interlocutory order]. 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 ....” Id. Although at oral
argument here, plaintiff's counsel asserted that the substantial
right which plaintiff seeks to protect is the avoidance of
inconsistent verdicts, plaintiff neither mentioned nor argued in
its brief that it risked loss of a substantial right absent
immediate appeal. We conclude that plaintiff has not met its
burden. Accordingly, plaintiff's appeal is dismissed.
Appeal dismissed.
Judges WALKER and McGEE concur.
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