Appeal and Error_preservation of issues_interlocutory appeal_Rule
60 motion to add certification
An appeal was dismissed as interlocutory where the trial
court's original order was not certified for appellate review
pursuant to N.C.G.S. § 1A-1, Rule 54(b) and plaintiffs failed to
argue in their brief that delay would deprive them of a
substantial right. Although plaintiffs subsequently filed a
motion to amend the order pursuant to N.C.G.S. § 1A-1, Rule 60 to
add the certification, Rule 60(a) provides a limited mechanism to
amend erroneous judgments and is not an appropriate means for
seeking an amendment to add a Rule 54(b) certification, and Rule
60(b)(6) applies only to final judgments, orders, or proceedings
and has no application to interlocutory orders.
McGuire, Wood & Bissette, P.A., by Grant B. Osborne, for
plaintiff-appellants.
Coward, Hicks & Siler, P.A., by William H. Coward, for
defendant-appellee.
CAMPBELL, Judge.
Plaintiffs filed two interrelated appeals from orders granting
defendant's motion to dismiss plaintiffs' claims for violation of
restrictive covenants and unfair and deceptive trade practices.
Upon plaintiffs' motion, the appeals were consolidated for argument
pursuant to N.C. R. App. P. 40. The appeals remain consolidatedfor decision in this opinion. For the reasons stated herein, we
dismiss both of plaintiffs' appeals.
On 3 March 2000, plaintiffs filed the instant action alleging
defendant had cut and removed trees from plaintiffs' property in
order to create a scenic view from defendant's adjacent tract of
property over plaintiffs' property, thereby enhancing the market
value of defendant's property and causing substantial damage to
plaintiffs' property. Based on defendant's alleged misconduct,
plaintiffs asserted claims against defendant for trespass to real
property, violation of N.C. Gen. Stat. § 1-539.1, conversion,
trespass to chattels, negligence and unfair and deceptive trade
practices. Plaintiffs further alleged that defendant had cut down
and removed several trees from his own property in violation of the
restrictive covenants governing the parties' subdivision.
On 7 July 2000, defendant filed a motion to dismiss
plaintiffs' claims for violation of restrictive covenants and
unfair and deceptive trade practices. Defendant's motion was
granted and the respective claims were dismissed by order filed 11
August 2000. Plaintiffs filed timely notice of appeal from the
trial court's order of dismissal. On 22 September 2000, subsequent
to filing notice of appeal in COA00-1415, plaintiffs filed a
“Motion To Correct Order Dismissing Claims For Relief.”
Specifically, plaintiffs moved the trial court to amend its 11
August 2000 order by certifying it for immediate appellate review
pursuant to N.C. R. Civ. P. 54(b) (Rule 54(b)). On 10 October
2000, the trial court entered an amended order of dismissal which
contained the trial court's Rule 54(b) certification. Plaintiffssubsequently filed timely notice of appeal from the trial court's
amended order (COA01-128).
The dispositive issue on appeal is whether the respective
orders are properly before this Court for review. Although neither
party has raised and addressed the interlocutory nature of
plaintiffs' appeals, we raise the issue of appealability on our own
motion. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431,
433 (1980). “Where a trial court's order . . . fails to resolve
all issues between all parties in an action, the order is not a
final judgment, but rather is interlocutory.” Howard v. Oakwood
Homes Corp., 134 N.C. App. 116, 118, 516 S.E.2d 879, 881 (1999).
An order, such as the orders sub judice, granting a motion to
dismiss certain claims in an action, while leaving other claims in
the action to go forward, is plainly an interlocutory order. See
Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597 (1985).
As a general rule, an interlocutory order is not immediately
appealable. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341,
344, 511 S.E.2d 309, 311 (1999). However, an interlocutory order
may be immediately appealed where it is certified for appellate
review pursuant to Rule 54(b), or “where delaying the appeal will
irreparably impair a substantial right of the party.” Id. Here,
the trial court's 11 August 2000 order granting defendant's motion
to dismiss was not certified by the trial court pursuant to Rule
54(b). Thus, it is immediately appealable only if delay would
irreparably impair a substantial right of plaintiffs.
However, plaintiffs failed to present argument in their briefto this Court to support our acceptance of this interl
ocutory
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). Since plaintiffs have failed to argue how
delaying appeal of the trial court's 11 August 2000 order would
deprive them of a substantial right, we dismiss plaintiffs' appeal
of the 11 August 2000 order as interlocutory.
Apparently realizing that the trial court's 11 August 2000
order was interlocutory, and hoping to secure its immediate
appellate review, plaintiffs filed a motion to correct the order
pursuant to N.C. R. Civ. P. 60 (Rule 60), seeking amendment of the
order to reflect the trial court's Rule 54(b) certification.
Plaintiffs relied on both Rule 60(a) and Rule 60(b)(6) as grounds
for their motion to correct the order. However, for the following
reasons, we hold that neither Rule 60(a) nor Rule 60(b)(6) is the
appropriate tool for seeking to amend an order to add the trial
court's Rule 54(b) certification. Therefore, the trial court's 10
October 2000 amended order is vacated and plaintiffs' appeal in
COA01-128 is likewise dismissed.
Rule 60(a) provides a limited mechanism for trial courts to
amend erroneous judgments. Specifically, Rule 60(a) provides, in
pertinent part: (a) Clerical mistakes.--Clerical mistakes
in judgments, orders or other parts of the
record and errors therein arising from
oversight or omission may be corrected by the
judge at any time on his own initiative or on
the motion of any party and after such notice,
if any, as the judge orders. . . .
N.C. R. Civ. P. 60(a)(1999).
“While Rule 60[a] allows the trial court to correct clerical
mistakes in its order, it does not grant the trial court the
authority to make substantive modifications to an entered
judgment.” Food Service Specialists v. Atlas Restaurant
Management, 111 N.C. App. 257, 259, 431 S.E.2d 878, 879 (1993). “A
change in an order is considered substantive and outside the
boundaries of Rule 60(a) when it alters the effect of the original
order.” Buncombe County ex rel. Andres v. Newburn, 111 N.C. App.
822, 825, 433 S.E.2d 782, 784 (1993). We conclude that the 10
October 2000 amended order impermissibly altered the effect of the
11 August 2000 order.
We find this Court's prior decision in Food Service to be
closely analogous to the present situation. In that case, the
trial court, on its own initiative and purportedly pursuant to Rule
60(a), amended a previous order by changing the date of entry of
judgment from 2 October 1991 to 21 January 1992. However, the
actual date judgment was entered was 13 December 1991. In holding
that this was an improper exercise of Rule 60(a), we stated, “[b]y
changing the incorrect date of entry of judgment (2 October 1991)
to a date other than 13 December 1991, the actual date judgment was
entered, the trial court improperly altered the substantive rightsof the parties by extending the period in which the parties could
file a timely notice of appeal.” Food Service, 111 N.C. App. at
259-60, 431 S.E.2d at 879.
We conclude that by adding the trial court's Rule 54(b)
certification and establishing grounds for immediate appellate
review of an otherwise interlocutory order, the trial court's 10
October 2000 amended order likewise “altered the substantive rights
of the parties.” Id. As in Food Service, the amended order in the
instant case allowed plaintiffs to circumvent the established
procedural rules governing the bringing of an appeal and secure
appellate review of an otherwise unappealable order. Accordingly,
we hold that Rule 60(a) is not an appropriate means for seeking an
amendment to an order or judgment to add the trial court's Rule
54(b) certification.
Plaintiffs also cited Rule 60(b)(6) as grounds for their
motion to correct the 11 August 2000 order. Rule 60(b) reads, in
pertinent part:
(b) Mistakes; inadvertence; excusable
neglect; newly discovered evidence; fraud,
etc.--On motion and upon such terms as are
just, the court may relieve a party or his
legal representative from a final judgment,
order, or proceeding for the following
reasons:
. . . .
N.C. R. Civ. P. 60(b)(emphasis added). By its express terms, Rule
60(b) only applies to final judgments, orders, or proceedings; it
has no application to interlocutory orders. Sink v. Easter, 288
N.C. 183, 193, 217 S.E.2d 532, 540 (1975); O'Neill v. Bank, 40 N.C.App. 227, 230, 252 S.E.2d 231, 234 (1979). Since the trial court
's
11 August 2000 order only granted defendant's motion to dismiss
two, but not all, of plaintiffs' claims, it is not a final judgment
or order. Thus, plaintiffs' motion to correct the order could not,
as a matter of law, have been proper under Rule 60(b), and the
trial court should not have considered the motion. See Hooper v.
Pizzagalli Construction Co., 112 N.C. App. 400, 408, 436 S.E.2d
145, 150-51 (1993) (holding that a Rule 60 motion was appropriately
denied where it sought relief from an order dismissing less than
all of the claims in an action). Therefore, we vacate the trial
court's 10 October 2000 amended order and dismiss plaintiffs'
appeal in COA01-128.
In summary, we dismiss plaintiffs' appeal in COA00-1415, and
we vacate the trial court's 10 October 2000 amended order and
dismiss plaintiffs' appeal from said vacated order in COA01-128.
Appeals dismissed and order vacated.
Chief Judge EAGLES and Judge HUDSON concur.
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