NO. COA03-376

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

    Appeal by plaintiff from orders entered 16 December 2002 by Judge Michael E. Helms in Wilkes County Superior Court. Heard in the Court of Appeals 14 January 2004.

    Franklin Smith, for plaintiff-appellant.

    Maupin Taylor, P.A., by Thomas W.H. Alexander and Hans H. Huang, for defendants-appellees.


    GEER, Judge.

    Plaintiff appeals the superior court's orders dismissing his claim with prejudice based on res judicata and collateral estoppel. Because defendant L.D. Dollar, III, Inc.'s counterclaims, arising out of facts separate from those underlying plaintiff's claims, have not yet been resolved, we dismiss this appeal asinterlocutory.
    Plaintiff filed a small claims court action in Ashe County on 27 March 2001 against "Larry Dollar DBA Colvard Oil," alleging that his truck was damaged in the amount of $1,502.44 while being washed in the automatic car wash at Colvard Oil Food Mart. After the magistrate ruled that plaintiff had failed to prove his case and dismissed his claim with prejudice, plaintiff appealed to the Ashe County District Court where the case proceeded to court-ordered arbitration.
    On 8 August 2001, the arbitrator filed an Award and Judgment form on which he wrote, "Plaintiff voluntarily dismissed claim w/o prejudice prior to close of evidence." The arbitrator checked a box on the form indicating that the costs of the arbitration would be taxed to plaintiff and wrote on the form that plaintiff was entitled to an award of "$0." Plaintiff never filed a written notice of voluntary dismissal or a stipulation of dismissal signed by the parties. On 10 September 2001, the district court judge entered judgment stating, "It is ORDERED that [the] Arbitrator's Award as set out above is hereby adopted as the Judgment of this Court."
    On 15 July 2002, plaintiff filed a new complaint in Wilkes County Superior Court based on the same facts at issue in the Ashe County action, but naming as defendants L.D. Dollar, III, Inc.,Dollar Mart Investments, Inc., L.D. Dollar, Inc. and Larry D. Dollar. Defendants filed a motion to strike the complaint, motion to dismiss the complaint, and a motion for a prosecution bond. L.D. Dollar, III, Inc. also filed counterclaims for libel and unfair and deceptive trade practices, alleging that plaintiff had crafted a large sign announcing, among other things, that Colvard Oil Food Mart's car wash damaged vehicles; that plaintiff attached the sign to a previously-damaged truck; and that plaintiff drove the truck (and attached sign) throughout Wilkes County.
    The trial court granted defendants' motion to dismiss plaintiff's complaint on the grounds of res judicata and collateral estoppel as a result of the Ashe County action. The court did not address defendant L.D. Dollar, III, Inc.'s counterclaims and there is no indication in the record that those claims have ever been resolved. The court ultimately entered two orders, one order granting defendants' motion to dismiss and a second order dismissing plaintiff's claims with prejudice. Plaintiff has appealed from both orders.

    

    An order is interlocutory if it does not dispose fully of a case, but rather requires further action by the trial court in order to finally determine the rights of all the parties involved in the controversy. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Because the trial court's orders in this casedismissing plaintiff's claims left the counterclaims intact, those orders are interlocutory. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003) (order granting defendants' motion for summary judgment, but not resolving defendants' counterclaims, was interlocutory). An interlocutory appeal is immediately appealable only if (1) the order is final as to some claims or parties and the trial court has certified pursuant to Rule 54(b) of the Rules of Civil Procedure 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 in the absence of an immediate appeal. Id.
    In this case, the trial court did not include a Rule 54(b) certification in its order. Plaintiff's appeal is, therefore, proper only if the "substantial right" exception applies. Compare id. at 713, 582 S.E.2d at 323 (order immediately appealable despite pending counterclaims because trial court's order included Rule 54(b) certification).
    The burden of establishing the existence of a substantial right rests with the appellant. Embler v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 262 (2001). This burden is reflected in Rule 28(b)(4) of the Rules of Appellate Procedure, which requires appellants to include in their briefs "[a] statement of the grounds for appellate review." With respect to interlocutory appeals, "thestatement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C.R. App. P. 28(b)(4).
    Plaintiff's brief, in violation of Rule 28(b)(4), fails to include a statement of grounds for appellate review or any other explanation as to why an interlocutory appeal should be allowed. As this Court has previously stressed, "[i]t 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). Nevertheless, we have reviewed the record and briefs and can identify no substantial right that will be lost to plaintiff in the absence of an immediate appeal.

    Dismissed.
    Judges MCGEE and HUNTER concur.
    Report per Rule 30(e).

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