An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-220


Filed: 2 March 2004



v .                         Wake County
                            No. 97 CVS 06825
capacity as the Executrix of
the Estate of Elmo D. Jones,


    Appeal by defendant from judgment entered 14 February 2002 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 18 November 2003.

    NICHOLLS & CRAMPTON, P.A., by Nicholas J. Dombalis, II, and R. James Lore, for plaintiff appellees.

    WOMBLE CARLYLE SANDRIDGE & RICE, by William F. Womble, Jr., for defendant appellant.


    Janet Jones (“defendant”), in her capacity as executrix of the estate of Elmo D. Jones (“Jones”), appeals a judgment of the trial court granting damages to Kurt Kikendall (“Kikendall”) and William Everette Hackney (“Hackney”) (collectively as “plaintiffs”). We dismiss the appeal.
    The pertinent facts of the instant appeal are as follows: On 13 October 1996 plaintiffs and defendant were involved in an aircraft collision. Kikendall, a licensed airplane pilot, ownedand piloted an Aeronca airplane. Hackney, a licensed airplane pilot and flight instructor, sat alongside Kikendall in the Aeronca airplane. Plaintiffs landed the airplane at the Fuquay-Angier Airport and began taxiing down the runway, in the opposite direction of airplanes taking off from the runway. Plaintiffs' airplane collided with a Grumman airplane owned by Jones. It was contested at trial whether Jones or his grandson was in control of the airplane prior to the collision. Jones is a licensed pilot.
    Plaintiffs filed a claim against Jones alleging negligence. Jones stipulated to his own negligence and filed an Answer and Counterclaim alleging that plaintiffs were contributorily negligent and that plaintiffs' negligence was the proximate cause of the collision.
    Jones died on 13 April 2000. Plaintiffs' filed a Motion for Substitution for Deceased Defendant and requested the court substitute defendant for Jones. The court granted plaintiffs' motion and ordered the substitution of defendant for decedent Jones.
    On 11 February 2002, a jury found that plaintiffs contributed to their injuries, but Jones had the last clear chance to avoid the collision. The jury awarded Kikendall $1,000.00 in damages and Hackney $40,000.00 in damages. The trial court denied defendant's Motion for Judgment Notwithstanding the Verdict and granted plaintiffs' Motion for New Trial on the Limited Issue of Damages. Defendant appeals.

    Defendant brings forth numerous assignments of error on appeal, including allegations of error in the trial court's determination of the merits of the case, the trial court's denial of defendant's motion to set aside the verdict, and the trial court's order granting plaintiffs' Motion for New Trial on the Limited Issue of Damages. Because we rule that this appeal is interlocutory and does not affect a substantial right, we dismiss the appeal.
    Generally, there is no right to appeal from an interlocutory order. “'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.'” Darroch v. Lea, 150 N.C. App. 156, 158, 563 S.E.2d 219, 221 (2002). The purpose of this rule is “to prevent fragmentary and premature appeals that unnecessarily delay the administration of justice and to ensure that the trial divisions fully and finally dispose of the case before an appeal can be heard.” As we have noted, “there is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578-79 (1999).
    The threshold issue is whether the 14 February 2002 judgment and 4 June 2002 order are properly before this Court. Concerning the order granting a new trial, section 1-277(a) of our General Statutes provides: “An appeal may be taken from every judicialorder or determination of a judge of a superior or district court . . . which . . . grants or refuses a new trial.” N.C. Gen. Stat. § 1-277(a) (2003). However, this Court has previously held that the aforementioned portion of section 1-277(a) is inapplicable to orders granting partial new trials on the issue of damages where the trial court accepts the jury determination of liability. Insurance Co. v. Dickens, 41 N.C. App. 184, 254 S.E.2d 197 (1979). “Therefore, the trial court's 'order granting a new trial solely as to the issue of damages . . . is interlocutory and . . . not subject to immediate appellate review.'” Loy v. Martin, 144 N.C. App. 414, 416, 547 S.E.2d 843, 844-45 (2001), quoting Johnson v. Garwood, 49 N.C. App. 462, 463, 271 S.E.2d 544, 544-45 (1980).
    In the instant appeal, defendant appeals from an order of the trial court granting plaintiffs a new trial on damages alone. Although we note that defendant challenges issues concerning the underlying verdict, in addition to her appeal of the new trial on damages, defendant “can preserve the right to have appellate review of all trial court proceedings by duly entered exceptions on appeal from the final judgment.” Insurance Co. v. Dickens, 41 N.C. App. 184, 186, 254 S.E.2d 197, 198 (1979).
    An interlocutory order may nonetheless be appealable if so allowed by the exceptions contained in North Carolina Rule of Civil Procedure 54(b) or North Carolina General Statutes sections 1-277 and 7A-27(d). See N.C. Gen. Stat. §§ 1A-1, Rule 54(b); 1-277; and 7A-27(d) (2003). The trial court did not certify either the order granting a new trial or the underlying judgment for immediatereview under Rule 54(b), and therefore defendant's right to immediate appeal depends on whether the order or judgment affect a substantial right. Loy, 144 N.C. App. at 418, 547 S.E.2d at 846.
    Whether an order or judgment affects a substantial right is to be determined on a case by case basis. Embler v. Embler, 143 N.C. App. 162, 545 S.E.2d 259 (2001). “A 'substantial right' is a right that 'itself must be substantial' and that 'must be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order.'” Loy, 144 N.C. App. at 418, 547 S.E.2d at 846, quoting J & B Slurry Seal Co v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5-6, 362 S.E.2d 812, 815 (1987). “'[I]t is the appellant[s'] burden to present argument in [their] brief to this Court to support acceptance of the appeal.'” Lee v. Mut. Community Sav. Bank, 136 N.C. App. 808, 810, 525 S.E.2d 854, 856 (2000), quoting Abe v. Westview Capital, L.C., 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998).
    Defendant argues that the instant appeal affects a substantial right as defined by Bowden v. Latta, 337 N.C. 794, 448 S.E.2d 503 (1994), LaFalce v. Wolcott, 76 N.C. App. 565, 334 S.E.2d 236 (1985), and Desmond v. City of Charlotte, 142 N.C. App. 590, 544 S.E.2d 269 (2001). We note that in Bowden, LaFalce, and Desmond the trial court either granted judgment notwithstanding the verdict or directed verdict and therefore did not accept the jury determination of liability. Thus, Bowden, LaFalce and Desmond do not comport with the facts alleged in the instant case. In the case sub judice, the trial court accepted the jury's determinationof liability, but concluded that the jury's damage award was in “arbitrary disregard of the Court's instructions.” As such, we conclude that the trial court's order for a new trial on damages alone has not affected a substantial right and dismiss this appeal as interlocutory.
    Judges WYNN and MCCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***