THERESE KUIPER, ADMIN. OF
ESTATE OF HENRY TIMOTHY KUIPER,
Plaintiff
v
.
Iredell County
No. 97-CVS-02054
AMERICAN HISTORIC RACING
MOTORCYCLE ASSOCIATION, LTD.,
Defendant
Massey & Cannon, P.L.L.C., by E. Bedford Cannon, for
plaintiff-appellant.
Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Edward L.
Eatman, Jr. and John D. Kocher, for defendant-appellee.
HUNTER, Judge.
Therese Kuiper (plaintiff) purports to appeal an order
granting partial summary judgment in favor of American Historic
Racing Motorcycle Association, Ltd. (defendant). Neither party
has argued the threshold question of whether this appeal is
interlocutory. It is well established in this jurisdiction that
if an appealing party has no right of appeal, an appellate court on
its own motion should dismiss the appeal even though the question
of appealability has not been raised by the parties themselves.
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). Here, the
trial court granted summary judgment in favor of defendant on
plaintiff's negligence claim, but denied summary judgment on
plaintiff's gross negligence claim. A grant of partial summary
judgment, because it does not completely dispose of the case, is an
interlocutory order from which there is ordinarily no right of
appeal. Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d
674, 677 (1993).
There are two instances, however, where a party may appeal an
interlocutory order. Abe, 130 N.C. App. at 334, 502 S.E.2d at
881. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) (1999) (Rule
54(b)), a party may appeal if the trial court enters 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. Id. A party may also
appeal if delaying the appeal will prejudice a substantial right.
Abe, 130 N.C. App. at 334, 502 S.E.2d at 881; N.C. Gen. Stat. §
1-277 (1999). In either of these situations, it is the
appellant's burden to present argument in his brief to this Court
to support acceptance of the appeal. Abe, 130 N.C. App. at 334,
502 S.E.2d at 881.
Here, although the case has been finally adjudicated as to one
of plaintiff's two claims, there has been no Rule 54(b)
certification by the trial court. In addition, plaintiff haspresented no argument that a substantial right will be affected if
this appeal is not accepted at this time. Indeed, we do not
believe that dismissal of this appeal could affect a substantial
right by resulting in two trials containing the same issues with a
possibility of inconsistent verdicts. See Moose v. Nissan of
Statesville, 115 N.C. App. 423, 426, 444 S.E.2d 694, 697 (1994).
Accordingly, we dismiss this appeal as interlocutory.
Dismissed.
Judges GREENE and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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