Williamson v Andraos, (03-44) 07/15/2003

Appeal by plaintiffs from an order entered 4 November 2002 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 7 July 2003.

David B. Hough for plaintiff-appellants.

Horton and Gsteiger, P.L.L.C., by Urs R. Gsteiger, for defendant-appellees.

STEELMAN, Judge.

    Plaintiffs, David and Angela Williamson, appeal an order allowing defendants' motion for partial summary judgment. For the reasons discussed herein, we dismiss this appeal.
    On 15 July 1998, plaintiff David T. Williamson went to a BP gas station in Winston-Salem, North Carolina, to purchase gas for his car. Defendants are the leaseholders of the gas station. While Williamson was pumping gas, several men attacked and beat him, causing injuries including a broken jaw, cuts and bruises. Plaintiffs filed this action on 13 July 2001 stating claims ofnegligence, loss of consortium, infliction of emotional distress, unfair and deceptive trade practices, and seeking punitive damages. Plaintiffs allege that defendants failed to provide reasonable and adequate security, failed to warn plaintiff of any dangers, and that defendants created a dangerous environment. On 29 August 2002, defendants moved for partial summary judgment on the claims for punitive damages and for unfair and deceptive trade practices. On 4 November 2002, the trial court allowed defendants' motion and granted partial summary judgment. Plaintiffs appeal.
    The threshold issue to consider is whether plaintiffs' 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); seealso N.C. Gen. Stat. § 7A-27(d)(1) (1999).
     Here, plaintiffs appeal from an order of partial summary judgment. “A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). Furthermore, the trial court did not certify the case for immediate appeal pursuant to Rule 54(b).
    We further note that plaintiffs fail to include a statement in their brief stating the grounds for interlocutory review.     N.C. R. App. P. 28(b)(4) 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 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).
    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.
    DISMISSED.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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