Russell v Smith, 152 NC App 718 (02-55) 09/03/2002

Appeal by Unnamed defendant Nationwide Insurance Company from orders entered 3 October and 15 October 2001 by Judge Timothy Kincaid in Superior Court, Mecklenburg County. Heard in the Court of Appeals 26 August 2002.

Campbell & Taylor, by Howard M. Labiner and Clair G. Campbell, for plaintiff-appellee.

Steven J. Colombo, P.A., by Steven J. Colombo and Marc H. Amin, for Unnamed defendant-appellant Nationwide Insurance Company.

WYNN, Judge.

    We dismiss this appeal by unnamed defendant Nationwide Insurance Company (“Nationwide”) from an order compelling arbitration because the order is interlocutory and not properly before this Court.
    The facts show that plaintiff Michelle T. Russell filed this action on 7 February 2000 alleging claims of negligence and seeking damages for personal injuries arising out of an automobile accidentoccurring on 15 April 1997. The named defendants answered denying plaintiff's allegations. At the time of the accident, plaintiff had two automobile insurance policies with unnamed defendant Nationwide Insurance Company (“Nationwide”) which provided plaintiff with uninsured motorist coverage. On 22 June 2001, plaintiff made a written demand upon Nationwide to proceed to arbitration. On 21 August 2001, plaintiff moved to compel arbitration. According to plaintiff's motion, the named defendants in the action had no insurance coverage, and Nationwide had failed to respond or consent to her demand for arbitration. On 3 October 2001, the trial court ordered Nationwide to proceed to arbitration. Nationwide moved the trial court for a rehearing on plaintiff's motion. The motion for rehearing was denied. Nationwide appeals.
    The threshold issue is whether Nationwide's appeal is premature, and therefore, not properly before this Court. “An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.” N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). This Court has stated:
        There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) 'if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review.'
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000)(quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997)); see also N.C. Gen. Stat. § 1-277(a) (1999); see also N.C. Gen. Stat. § 7A-27(d)(1) (1999).
    Here, Nationwide appeals from an order compelling arbitration. “[T]his Court has expressly held 'that there is no immediate right of appeal from an order compelling arbitration.'” Laws v. Horizon Housing, Inc., 137 N.C. App. 770, 771, 529 S.E.2d 695, 696 (2000) (quoting The Bluffs v. Wysocki, 68 N.C. App. 284, 286, 314 S.E.2d 291, 293 (1984)). In Wysocki, this Court explained that:
        Following the conclusion of arbitration, a party may apply to the court for an order either confirming, vacating, modifying or correcting an arbitration award . . . . Upon the entry of such an order, the trial court must enter a judgment or decree in conformity with such order. A dissatisfied party then . . . has a right of appeal from the trial court's order or judgment. The parties thus have access to the courts. Moreover, the parties may present their defenses and contentions, including waiver, accord and satisfaction or compromise and settlement, novation, or duress, at the arbitration proceedings.

Id. at 285, 314 S.E.2d at 293 (citations omitted).
    We further note that Nationwide fails to include a statement in its brief stating the grounds for interlocutory review. N.C.R. App. P. 28(b)(4) (2001)requires that the brief contain a statement of the grounds for appellate review containing “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” “It is not the dutyof this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order.” Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
    Accordingly, because there was no final judgment in this case, nor were there any substantial rights of the parties affected, we hold that this appeal is premature, and therefore, dismiss it as interlocutory.
    Appeal dismissed.
    Judges McGEE and CAMPBELL concur.
    Report per Rule 30(e).

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