NO. COA02-835
Appeal by plaintiffs from order filed 19 April 2002 by Judge
W. Douglas Albright in Guilford County Superior Court. Heard in
the Court of Appeals 30 December 2002.
Wells Jenkins Lucas & Jenkins, PLLC, by Ellis B. Drew, III and
Mitra Sanai, for plaintiff appellants.
Frazier & Frazier, L.L.P., by Torin L. Fury, for defendant-
appellee Wiggins-North State Monument Co., Inc.
GREENE, Judge.
John A. Richards and Joan M. Richards (Plaintiffs) appeal from
an order filed 19 April 2002 dismissing their claims for negligent
entrustment and punitive damages.
On 4 June 2001, Plaintiffs filed this action against Lawrence
E. Vanstory and Wiggins-North State Monument Co., Inc. (Wiggins-
North State) alleging claims of negligence, negligent entrustment,
loss of consortium and seeking compensatory and punitive damages
for personal injuries and lost wages arising out of a 12 June 1998automobile accident. Wiggins-North State filed an answer on 5
March 2002 denying Plaintiffs' allegations. Additionally, Wiggins-
North State moved to dismiss Plaintiffs' claim for punitive damages
pursuant to Rule 12(b)(6) and moved for judgment on the pleadings
as to Plaintiffs' claims of negligent entrustment and punitive
damages. On 19 April 2002, the trial court allowed both motions
and dismissed Plaintiffs' claims for negligent entrustment and
punitive damages. The trial court, however, did not certify this
order for immediate appeal.
_______________________________
The dispositive issue is whether Plaintiffs' appeal is
interlocutory 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 Transp. 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 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)
;
see also N.C.G.S. §§ 1-277(a), 7A-27(d)(1)(2001)
.
In this case, Plaintiffs appeal from an order dismissing two
of their four claims for relief. The order is clearly
interlocutory and was not certified for immediate appeal by the
trial court.
Furthermore, Plaintiffs fail to show how the order
affects a substantial right, citing no harm that could not be
corrected upon appeal or any right that would be clearly lost
absent immediate review.
See Jarrell v. Coastal Emergency Servs.,
121 N.C. App. 198, 200, 464 S.E.2d 720, 722 (1995) (no possibility
of inconsistent verdicts in action based solely on
respondeat
superior because second trial would involve only the issue of a
master/servant relationship between the defendants);
Moose v.
Nissan of Statesville, 115 N.C. App. 423, 444 S.E.2d 694 (1994)
(order dismissing claim for punitive damages does not affect a
substantial right). “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.”
Jeffreys v. Raleigh Oaks Joint Venture,
115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
We further note that Plaintiffs fail to include a statement in
their brief stating the grounds for interlocutory review.
Appellate Rule 28(b)(4) requires 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.” N.C.R. App. P.
28(b)(4).
Accordingly, because there was neither a final judgment inthis case nor any substantial right of the parties affected, this
appeal is premature and we therefore dismiss it as interlocutory.
Dismissed.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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