Schuchardt v Auto-Owners Insurance Co., (03-276) 05/18/2004

Appeal by plaintiffs from order entered 23 December 2002 by Judge Michael E. Helms in Wilkes County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Franklin Smith, for plaintiffs-appellants.

    Tuggle, Duggins & Meschan, P.A., by Richard D. Yeoman and Steven P. Weaver, for defendant-appellee.

CALABRIA, Judge.

    Alan C. and Francesca Spencer Schuchardt (“plaintiffs”) appeal from the 23 December 2002 order denying their motion for summary judgment and petition to set aside the umpire's award. Since the order neither constitutes a final judgment as to any individual claim or party, nor affects a substantial right, plaintiffs' appeal is interlocutory and must be dismissed.
    Plaintiffs purchased homeowners insurance from defendant for their residence in Purlear, North Carolina, for the period between 10 June 2000 and 10 June 2001. Following a fire on 26 December 2000, plaintiffs filed a claim under the policy. In November 2001,when the parties could not agree on the amount of loss caused by the fire, defendant invoked the appraisal clause of the insurance policy. See N.C. Gen. Stat. § 58-44-15 (2001). In December 2001, plaintiffs filed suit against defendant alleging breach of contract, unconstitutionality of the appraisal process, as authorized by N.C. Gen. Stat. § 58-44-15, and unfair and deceptive trade practices, pursuant to N.C. Gen. Stat. §§ 58-63-15 and 75-1.1 (2001).     On motion by defendant, the trial court entered an order on 6 August 2002, appointing an umpire to oversee the appraisal process. Plaintiffs filed an objection and exception to the order. The umpire filed his report and award on 15 October 2002, which included a joint “Declaration of Appraisers” establishing a total award of $475,550.00 for the repair of plaintiffs' dwelling.
    Thereafter, plaintiffs filed a “Petition to Set Aside Award by Appraisers and Umpire” and “Motion for Summary Judgment” on 25 October 2002. In addition to reiterating their constitutional challenge to the appraisal procedure authorized by N.C. Gen. Stat. § 58-44-15, plaintiffs accused defendant's appraiser of “trick[ing] and persuad[ing]” the umpire into reducing his initial appraisal of $565,000.00, and objected to the failure of the umpire to provide any award for the damage to their personal property. By order entered 23 December 2002, the trial court denied both the plaintiffs' petition and motion finding “the appraisal award produced by the appraisers and umpire conformed to the requirements of the contract” and “genuine issues of material fact exist in the case.” Plaintiffs appealed. Thereafter, the trial court stayedfurther proceedings, pending the outcome of plaintiffs' appeal and certifying that there was “no just cause or reason for further delay in the Plaintiffs proceeding to the North Carolina Court of [A]ppeals.”
    Since the order from which plaintiffs appeal was “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,” the order is interlocutory. N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). Generally, an interlocutory order is not immediately appealable. Embler v. Embler, 143 N.C. App. 162, 164, 545 S.E.2d 259, 261 (2001). However, a party may immediately appeal an interlocutory order only in the following circumstances: (1) when the order is final as to at least one claim or party, and the trial court certifies pursuant to N.C. Gen. Stat. § 1A-1, Rule 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. See Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000); N.C. Gen. Stat. §§ 1-277(a), 7A-27(d) (2001).
    In the case at bar, the trial court certified that there was “no just cause or reason for further delay” review of the interlocutory order in accordance with Rule 54(b). N.C. Gen. Stat. § 1A-1, Rule 54(b) (2001). However, Rule 54(b) does not permit the trial court to “enter a final judgment” and certify there is no reason to delay an immediate appeal for every interlocutory order;rather, the rule requires the order be a final determination for at least one of the claims or parties. Id.; Accord Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996) (“an interlocutory order can be immediately appealed 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”). Here, following denial of plaintiffs' petition and motion for summary judgment, both plaintiffs and defendant remain and none of plaintiffs' claims have been finally determined. Accordingly, since no claim has been fully resolved nor any party's rights determined, the trial court had no grounds to certify this matter for immediate appeal pursuant to Rule 54(b).
    Nevertheless, an interlocutory order may be immediately appealed where a substantial right would otherwise be lost. Turner, 137 N.C. App. at 141, 526 S.E.2d at 669. Plaintiffs did not assert 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, we decline to do so here.
    Appeal dismissed.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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