ANNE HAMILTON BREWER and
WAYNE NELSON BREWER,
Petitioners,
v
.
Alamance County
No. 02 SP 356
CAROLYN REEVES BREWER,
Respondent,
and
DAVID SMITH, Trustee, and
THE COUNTY OF ALAMANCE, and
MARK O'NEAL, Trustee, and
FREMONT INVESTMENT AND LOAN,
Third-Party Respondents.
Vernon, Vernon, Wooten, Brown, Andrews, & Garrett, P.A., by
Benjamin D. Overby, for petitioner appellees.
Ridge & Holley, by David K. Holley, for respondent appellant.
McCULLOUGH, Judge.
This case arises out of a dispute between Carolyn Brewer
(respondent) and her stepchildren, Wayne Brewer and Anne Brewer
(petitioners). Respondent married petitioners' father, Floyd
Brewer, on 6 April 1981. On 19 November 1981, Floyd Brewer
conveyed to petitioner Wayne Brewer a tract of land located in
Graham, North Carolina (Wayne Brewer tract). Respondent did notparticipate in the 1981 transaction. The Wayne Brewer tract is
currently subject to a deed of trust held by Fremont Investment and
Loan and Mark O'Neal, the trustee (third-party respondents Fremont
and O'Neal).
The other parcel of land at issue in this case is the marital
home of Floyd and Carolyn Brewer. This parcel is currently subject
to a deed of trust in favor of Alamance County, North Carolina,
with David Smith as trustee.
On 17 May 2000, Floyd Brewer died intestate. The Alamance
County Clerk of Court issued letters of administration to
petitioner Anne Brewer on 5 April 2001. Petitioner Anne Brewer
gave notice to creditors through publication in the Alamance News
from 10 May 2001 to 31 May 2001. Creditors who wished to assert
claims against the estate of Floyd Brewer had to file by 11 August
2001.
On 12 August 2002, petitioners filed a petition to partition
action against respondent. Petitioners alleged that they had a
two-thirds (.) interest in the marital property and sought to have
the home sold with the proceeds divided. On 3 January 2003,
respondent filed an answer to the petition, a counterclaim, and a
notice to elect a life estate pursuant to N.C. Gen. Stat. § 29-30
(2003). In addition to attempting to elect a life estate in the
marital property, respondent also claimed an interest in the Wayne
Brewer tract. Respondent argued that, even though she was not a
party to the deed, the transaction was still subject to her rights
under N.C. Gen. Stat. § 29-30. At this time, respondent providednotice to mortgage holders of her intentions, and third-party
respondents Fremont and O'Neal were joined to the proceeding.
On 21 January 2003, third-party respondents Fremont and O'Neal
filed an answer asserting that respondent's purported election of
a life estate in the Wayne Brewer tract was untimely. After
hearing the arguments of all the parties, the trial court granted
summary judgment for third-party respondents Fremont and O'Neal
only.
Respondent appeals. On appeal, respondent argues that the
trial court erred in determining that her claims were time barred.
However, we do not reach this issue because respondent's appeal is
interlocutory and subject to dismissal.
Under N.C. Gen. Stat. § 1A-1, Rule 54(a) (2003), a judgment is
either final or interlocutory. Our Supreme Court has explained
this distinction:
A final judgment is one which disposes of the
cause as to all the parties, leaving nothing
to be judicially determined between them in
the trial court. An interlocutory order is one
made during the pendency of an action, which
does not dispose of the case, but leaves it
for further action by the trial court in order
to settle and determine the entire
controversy.
Veazey v. Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381, reh'g
denied, 232 N.C. 744, 59 S.E.2d 429 (1950). In this case, there
was not a final judgment because the trial court did not dispose of
the matter entirely. Because further action must be taken to
decide the petition to partition and the parties' rights in the
marital property, this is an interlocutory order. Generally, there are two channels through which an
interlocutory order may be appealed. Brown v. Brown, 77 N.C. App.
206, 207, 334 S.E.2d 506, 507 (1985), disc. review denied, 315 N.C.
389, 338 S.E.2d 878 (1986). First, Rule 54(b) of our Rules of
Civil Procedure allows a party to appeal if there has been a final
judgment as to all of the claims and parties, or if the specific
action of the trial court from which appeal is taken is final and
the trial judge expressly determines that there is no just reason
for delaying the appeal. Id. at 207, 334 S.E.2d at 507-08
(emphasis added). Our review of the record indicates that the
trial court did not make this certification. Therefore, there is
no right to appeal under Rule 54(b).
The second ground for appealing an interlocutory order is
through the substantial right exception. Id. at 208, 334 S.E.2d at
508. Our courts have articulated a two-part test: (1) the right
itself must be substantial and (2) the deprivation of that
substantial right must potentially work injury to plaintiff if not
corrected before appeal from final judgment. Goldston v. American
Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). The
substantial right test is more easily stated than applied.
Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343
(1978). Furthermore, [i]t is usually necessary to resolve the
question in each case by considering the particular facts of that
case[.] Id. Courts recently have taken a restricted view of the
substantial right exception. Brown, 77 N.C. App. at 208, 334
S.E.2d at 508. A right is substantial only when it will clearlybe lost or irremediably adversely affected if the order is not
reviewable before final judgment. Blackwelder v. Dept. of Human
Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983). The
appealing party has the burden of presenting 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)(2004). 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).
In this case, respondent claims that she has a substantial
right because the recognition of her right to claim such life
estate would establish her right to possession and occupancy of the
dwelling at issue in the partition[.] However, respondent has
not cited and we are not aware of a case in which our courts have
found a substantial right under these circumstances. Respondent
has also failed to show what right would be clearly lost or
irreparably harmed by continuing this proceeding to final judgment.
We note that the trial court's order granting summary judgment
applied only to third-party respondents Fremont and O'Neal and
their interest in the Wayne Brewer tract. The trial court has not
decided the parties' rights in the marital property, including the
petition to partition the land. We believe that the interests of
justice are best served by allowing the trial court to reach a
final judgment on all issues, rather than considering these matters
through multiple appeals. If respondent is the aggrieved party,she will have the opportunity to appeal and assert her life estate
claim before the land is actually partitioned.
Finally, we are guided by longstanding principles of appellate
procedure. The purpose of the restriction on the right to appeal
immediately from an interlocutory order is to prevent fragmentary,
premature and unnecessary appeals by permitting the trial divisions
to have done with a case fully and finally before it is presented
to the appellate division. Waters, 294 N.C. at 207, 240 S.E.2d at
343. Appellate procedure is designed to eliminate the unnecessary
delay and expense of repeated fragmentary appeals, and to present
the whole case for determination in a single appeal from the final
judgment. Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669,
671 (1951).
Based on our careful review of the record, we cannot conclude
that respondent will be irreparably harmed pending a final
resolution of this case. Accordingly, we return this case to the
trial court for determination of the entire controversy.
Appeal dismissed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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