NO. COA02-878
Appeal by plaintiff from judgment entered 22 March 2002 by
Judge Robert H. Hobgood in Wake County Superior Court. Heard in
the Court of Appeals 24 February 2003.
Bailey & Dixon, L.L.P., by Philip A. Collins, for unnamed
defendant-appellee Nationwide Mutual Insurance Company.
E. Gregory Stott for plaintiff-appellant.
TYSON, Judge.
Arthur G. Raymond, Jr. (“plaintiff”) appeals the award of
summary judgment to unnamed defendant Nationwide Mutual Insurance
Company (“Nationwide”). We dismiss the appeal as interlocutory.
I. Background
Plaintiff filed a complaint on 1 May 2001, seeking
compensation for damage to his automobile sustained in an accident
with defendant, Connie Dian Markham. Plaintiff's automobile
insurer, Nationwide, filed an answer to the complaint as an unnamed
defendant, asserting a counterclaim for declaratory relief toestablish that plaintiff's insurance policy did not provide
underinsured motorist coverage for damages to personal property.
After a hearing, the trial court entered summary judgment in favor
of Nationwide, finding it had “no underinsured motorist property
damage coverage obligation for any of Plaintiff's claims set forth
in this action.” Plaintiff filed timely notice of appeal from this
judgment.
II. Issue
The question presented is whether plaintiff's appeal is
interlocutory.
III. Interlocutory Appeals
"'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.'"
Turner v. Norfolk S. Corp.,
137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (quoting
N.C.
Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d
332, 334 (1995)). As a general matter, there is no right to appeal
from an interlocutory order prior to entry of the final judgment.
Id. at 141, 526 S.E.2d at 669. A party may immediately appeal an
interlocutory order in only two circumstances: (1) when the order
is final as to at least some but not all claims or parties, and the
trial court certifies pursuant to N.C.R. Civ. P. 54(b) that there
is no just reason for delay; or (2) when the order deprives the
appellant of a substantial right that would be lost absent an
immediate appeal.
Id.; N.C.G.S. §§ 1-277(a), 7A-27(d) (2001). Theappellant's brief must state the grounds for immediate appellate
review. N.C.R. App. P. 28(b)(4) (2003).
The judgment does not resolve plaintiff's tort suit against
the named defendants and is interlocutory. Plaintiff's brief to
this Court states no basis for immediate appeal of this
interlocutory judgment as required by Rule 28(b)(4), and we find
none. The trial court did not certify the judgment pursuant to
Rule 54(b). No substantial right of plaintiff's will be prejudiced
by delaying his appeal until entry of a final judgment.
Plaintiff
may challenge the award of summary judgment to Nationwide if and
when he is awarded damages for which Nationwide might be liable.
See Corbett v. Smith, 131 N.C. App. 327, 327, 507 S.E.2d 303, 304
(1998) (citing
Corbett v. Smith, 125 N.C. App. 211, 480 S.E.2d 60
(1997) (unpublished) (dismissing interlocutory appeal of order
awarding summary judgment to plaintiff's insurer))
.
“Where an appealing party has no right to appeal, an appellate
court should on its own motion dismiss the appeal even though the
question of appealability has not been raised by the parties
themselves.”
State v. School, 299 N.C. 351, 360, 261 S.E.2d 908,
914 (1979) (citing
Waters v. Personnel, Inc., 294 N.C. 200, 201,
240 S.E.2d 338, 340 (1978)),
opinion certified on rehearing, 299
N.C. 731, 265 S.E.2d 387,
appeal dismissed, 449 U.S. 807, 66 L. Ed.
2d 11-12 (1980).
IV. Conclusion
We dismiss the instant appeal for lack of jurisdiction.
Dismissed. Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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