Birchfield v Ledford, (02-910) 06/17/2003

Appeal by defendants from an order entered 29 April 2002 by Judge Earl J. Fowler, Jr. in Buncombe County District Court. Heard in the Court of Appeals 14 April 2003.

Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J. Lopez, for plaintiff-appellee.

James Michael Lloyd, P.A., by James Michael Lloyd, for defendant-appellants.

    HUNTER, Judge.

    Marilyn Owenby Ledford and George Richard Owenby (“co- administrators”), co-administrators of the estate of Benjamin Jay Owenby (“Benjamin”), appeal from the trial court's order allowing the substitution of these co-administrators as parties defendant in an equitable distribution action brought by LaRene (Owenby) Birchfield (“plaintiff”) against Benjamin, her late ex-husband. The order from which the co-administrators appeal is interlocutory; therefore, we dismiss the appeal.    On 18 October 2000, plaintiff filed a complaint against Benjamin seeking equitable distribution of the parties' marital property. Benjamin subsequently filed an answer. A consent judgment was entered on 31 January 2001 dividing and distributing the parties' marital property. The following provision was included in this consent judgment: “Should one of the parties not disclose any property it is agreed, if and when, discovery of the property [sic] that the value of the property will be divided equally between the Plaintiff and [Benjamin].” Plaintiff and Benjamin were divorced by judgment entered on 5 July 2001.
    Benjamin subsequently died intestate on 29 January 2002 and the co-administrators of Benjamin's estate were appointed. On 5 February 2002, an inventory of the contents of Benjamin's lockbox was performed. The inventory reflected $100,000.00 in cash, six certificate folders and other documents denominated as miscellaneous papers.
    On 21 March 2002, plaintiff filed motions in the cause, in which she sought: (1) to substitute the co-administrators of Benjamin's estate as parties defendant in the action; (2) to enforce the equitable distribution judgment as a result of the failure to disclose assets, or alternatively to re-open the equitable distribution judgment as a result of the failure to disclose assets; and (3) to be permitted to enter the former marital residence of the parties in order to attempt to locate a will or other items that were not disclosed in the equitable distribution consent judgment.    A hearing was held on 4 April 2002 to determine whether plaintiff should be permitted to substitute the co-administrators as parties defendant in the action. After hearing arguments, the trial court filed an order on 29 April 2002, allowing plaintiff to substitute the co-administrators as parties defendant. The co- administrators appeal from this order.
    The threshold issue on appeal is whether the trial court's order allowing the substitution of parties defendant is properly before this Court. We conclude that it is not.
    The order from which the co-administrators are appealing is clearly interlocutory since it does not dispose of the entire case but merely allows the substitution of the co-administrators as parties defendant in the action. See Carriker v. Carriker, 350 N.C. 71, 511 S.E.2d 2 (1999). Generally, there is no right of immediate appeal from an interlocutory order. Myers v. Mutton, ____ N.C. App. ____, ____, 574 S.E.2d 73, 75 (2002), disc. review denied, ____ N.C. ____, ____ S.E.2d ____ (No. 84P03 filed 27 March 2003). However, an interlocutory order
        is immediately appealable if (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.

Id. The appellant bears the burden of providing this Court with an appropriate ground to review his appeal from an interlocutory order. Id.    In the instant case, the co-administrators argue that the order allowing the substitution of parties defendant is immediately appealable in that it affects a substantial right because there are overlapping factual issues between the claim which was previously determined by the consent judgment and any claims which have not yet been determined. The co-administrators claim that such overlap creates the potential for inconsistent verdicts resulting from a second trial on the same factual issues.
    “A substantial right . . . is considered affected if 'there are overlapping factual issues between the claim determined and any claims which have not yet been determined' because such overlap creates the potential for inconsistent verdicts resulting from two trials on the same factual issues.” Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 677 (1993) (quoting Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 26, 376 S.E.2d 488, 492 (1989)). The order appealed from in the present case merely established jurisdiction over the co-administrators. Therefore, there is no potential for inconsistent verdicts from a second trial upon the same factual issues.
    The co-administrators additionally argue that the order is immediately appealable under N.C. Gen. Stat. § 1-277(b) (2001) because they have an immediate right of appeal from the denial of their motion to dismiss for lack of personal jurisdiction due to lack of process. However, Section 1-277(b) does not apply to the instant case. Section 1-277(b) provides that “[a]ny interested party shall have the right of immediate appeal from an adverseruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause.” Our Supreme Court has limited this statute's applicability in holding “that the right of immediate appeal of an adverse ruling as to jurisdiction over the person, under that statute, is limited to rulings on 'minimum contacts' questions . . . .” Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982). The Court reasoned:
        Allowing an immediate appeal only for “minimum contacts” jurisdictional questions precludes premature appeals to the appellate courts about issues of technical defects which can be fully and adequately considered on an appeal from final judgment, while ensuring that parties who have less than “minimum contacts” with this state will never be forced to trial against their wishes.

Id. The case at bar does not involve a “minimum contacts” question. Thus, the co-administrators are not entitled to an immediate appeal from the interlocutory order pursuant to Section 1-277(b).
    Concluding, as we have, that the order from which the co- administrators seek to appeal is interlocutory and there is no right to an immediate appeal, we dismiss the appeal as premature.
    Dismissed.
    Chief Judge EAGLES and Judge CALABRIA concur.
    Report per Rule 30(e).

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