STEPHEN MALDARI,
Plaintiff-Appellee
v. Alexander County
No. 01CVD199
JOHNNY HOLLAR,
Defendant-Appellant
Robert E. Campbell for plaintiff-appellee.
Edward Jennings for defendant-appellant.
MARTIN, Judge.
Plaintiff initiated this civil action on or about 19 April
2001 when he filed a document entitled “Complaint and Attachment
Proceeding Motion for Temporary Restraining Order,” alleging that
defendant had breached a commercial lease executed by the parties
on or about 29 September 1995. As a result of the alleged breach,
plaintiff sought an order of attachment for certain items of
inventory located in the leased premises, a temporary restraining
order, and damages in the amount of $14,807.12 plus attorneys fees,
costs, and interest. The trial court issued an ex parte order of
attachment, along with a summons to garnishee and notice of levy on
that same day. In accordance with plaintiff's request in thecomplaint, the Sheriff was not required by the trial court to
remove the property from the leased premises. Instead, the order
of attachment “restrained [defendant] from removing [said] property
from the premises.” On 8 May 2001, defendant answered, moved to
dismiss plaintiff's complaint, and asserted four counterclaims. In
a separate motion filed the same day, defendant moved to dissolve
the order of attachment based upon a defect on the face of the
record. The trial court subsequently found and concluded that
there were “no defects appearing upon the face of the record
concerning the entry of the order of attachment, summons to
garnishee or notice of levy.” Defendant appeals.
While neither party raises the issue, we note that the
district court's order does not adjudicate all of the claims or
rights and liabilities of the parties to this action, and is
therefore, interlocutory. See Abe v. Westview Capital, 130 N.C.
App. 332, 334, 502 S.E.2d 879, 881 (1998) (raising sua sponte the
issue of the interlocutory nature of an appeal). Generally, an
interlocutory order is not immediately appealable. Id. A party,
however, may be entitled to immediate appeal pursuant to G.S. § §
1-277 and 7A-27(d), or N.C.R. Civ. P. 54(b). Id.
This matter was not certified by the trial court pursuant to
Rule 54(b) as being immediately appealable; therefore, the only
basis upon which this appeal may rest is that the order from which
defendant appeals affects a substantial right. See N.C. Gen. Stat.
§§ 1-277(a) and 7A-27(d)(1) (1999). Pursuant to sections 1-277(a)
and 7A-27(d)(1), an otherwise interlocutory order may be appealedupon a showing that: (1) the order affects a substantial right;
and (2) the deprivation of that right will potentially work injury
to the appellant if not corrected before appeal of the final
judgment. Goldston v. American Motors Corp., 326 N.C. 723, 392
S.E.2d 735 (1990). In Jeffreys v. Raleigh Oaks Joint Venture, this
Court stated, "[i]t 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 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." 115 N.C. App. 377, 380,
444 S.E.2d 252, 254 (1994). Failure to make such a showing
subjects an appeal to dismissal. Id. Defendant-appellant presents
no argument that any substantial right will be irreparably lost
should this appeal not be immediately entertained by the Court, and
we discern none. Accordingly, this appeal is dismissed.
Dismissed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***