Pharmaresearch Corporation v Mash, (02-757) 07/01/2003

Appeal by defendant from order entered 14 January 2002 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 18 February 2003.

Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Pressly M. Millen, and Kirkland & Ellis by Andrew R. McGaan for plaintiff appellee.

Fletcher, Ray & Satterfield, L.L.P., by R. Jay Short, Jr., George L. Fletcher and Kimberly L. Moore for defendant appelant.

    ELMORE, Judge.

    Defendant appeals from the trial court's dismissal pursuant to N.C.R. Civ. P. 12(b)(6) of his second and fifth counterclaims for failing to state a claim upon which relief can be granted. The original complaint and counterclaims concern the plaintiff's demand for the return of stock certificates from the defendant, a founder of the plaintiff company, in the wake of allegations by the defendant that he was “the victim of a scheme by other shareholders and employees of the Company to steal his interest in the corporation from him.” The second counterclaim was for unfair anddeceptive trade practices, and the fifth counterclaim was for constructive trust.
    When defendant filed his notice of appeal on 12 February 2002 neither the original claims nor the remaining counterclaims had been disposed of by the trial court. Plaintiff voluntarily dismissed its action without prejudice in a motion dated 22 August 2002 and added to the record on appeal by motion of the defendant. Defendant asserted in his reply brief that the remaining counterclaims were disposed of by summary judgment, however we have received no documentation of that judgment.
    An order 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 rights of all the parties involved in the controversy. Generally, there is no right to appeal from an interlocutory order. Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (citations omitted); N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). See generally, Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). An immediate appeal from an interlocutory order will only lie where (1) the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b); or (2) when the challenged order affects a substantial right that may be lost without immediate review. N.C. Gen. Stat. § 1-277(a) (2001). McConnell v. McConnell, 151 N.C. App. 622, 566 S.E.2d 801 (2002).     In the case at bar, the trial judge made no certification in the judgment that pursuant to Rule 54(b) there was no just reason for delay. We therefore turn to an analysis of whether a substantial right is affected which would justify this appeal under § 1-277(a) of the General Statutes. Whether an interlocutory appeal affects a substantial right is determined on a case by case basis. Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 262 (2001); McCallum v. N.C. Coop. Extension Serv., 142 N.C. App. 48, 542 S.E.2d 227, disc. review denied, 353 N.C. 452, 548 S.E.2d 527 (2001). Our courts have generally taken a restrictive view of the substantial right exception to the general rule that interlocutory appeals are forbidden. Embler, 143 N.C. App. 162, 545 S.E.2d 259. Blackwelder v. Dept. of Human Resources, 60 N.C. App. 331, 299 S.E.2d 777 (1983). “A substantial right is 'one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'” McConnell v. McConnell, 151 N.C. App. 622, 625, 566 S.E.2d 801, 804 (2002), quoting Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (citations omitted).
    The burden of establishing that a substantial right is affected is on the appellant (here the defendant). Embler, 143 N.C. App. at 165, 545 S.E.2d at 262. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994). Defendant asserts in his brief that the substantial right affected is the right “to have all his claims heard by the same judge and the same jury.” We note at the outset that N.C.R. App. P. 28(b)(4) requiresa party appealing from an interlocutory order to include a statement in its brief that contains “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). Aside from the conclusory statement quoted above and citation to two cases, defendant has not referenced any facts or brought any argument in support of his assertion. Defendant has failed to comply with Rule 28(b)(4). We likewise discern no substantial right.
    Our Court has held that a substantial right exists justifying immediate review of an interlocutory appeal when there are multiple claims and counterclaims which contain overlapping factual issues, because to delay the appeal may result in inconsistent verdicts. Murphy v. Coastal Physician Grp., Inc., 139 N.C. App. 290, 293, 533 S.E.2d 817, 820 (2000). There is, however, no danger of inconsistent verdicts when the claims are not dependant on the same set of facts. Id. at 294, 533 S.E.2d at 820.
    In the case at bar, plaintiff's complaint alleges breach of contract and conversion. Defendant's counterclaims are for declaratory relief, unfair and deceptive trade practices, breach of contract, injunctive relief, and constructive trust. The two counterclaims dismissed and made the subject of this appeal are the claims for unfair and deceptive trade practices and constructive trust.
    To establish a prima facie claim for unfair trade practices, the movant must show: (1) the other party “committed an unfair or deceptive act or practice, (2) the action in question was in oraffecting commerce, and (3) the act proximately caused injury to the [movant].” Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 664, 464 S.E.2d 47, 58 (1995) (citations omitted). The unfair and deceptive trade practices act contained in N.C. Gen. Stat. § 75-1.1 was not intended to apply to most disputes arising out of the employer-employee relationship, but rather is intended for protection of the consumer. Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 710 (2001). Moreover, securities transactions are governed by other law and do not fall within the scope of N.C. Gen. Stat. § 75-1.1. Skinner v. E. F. Hutton & Co., 314 N.C. 267, 275, 333 S.E.2d 236, 241 (1985). It follows that defendant's claim for unfair trade practices does not overlap the factual issues of his claims for declaratory relief, breach of contract, and injunctive relief, nor any of the plaintiff's claims. In all the remaining claims there is no element of deception, unfairness, or an effect on commerce, and those claims relate to the former employment relationship between the defendant and appellant, issues of contract based on the shareholder agreement between the parties, or issues relating to a securities transaction, and not to defendant's rights as a consumer.
    Constructive trust is a remedy, and not a separate cause of action. See Weatherford v. Keenan, 128 N.C. App. 178, 493 S.E.2d 812 (1997), disc. review denied, 348 N.C. 78, 505 S.E.2d 887 (1998). Defendant did not ask for this remedy in any of his other counterclaims. Therefore we discern no overlapping factual issue and no substantial right.    The defendant's appeal is therefore
    Dismissed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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