An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1366


Filed: 1 June 2004


    v.                        Guilford County
                            No. 02 CVS 11260

    Appeal by plaintiff from order dated 17 June 2003 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Emmaline Ellison Shella, pro se plaintiff-appellant.

    Gray Newell Johnson & Blackmon, LLP, by Angela Newell Gray, for defendant-appellees.

    BRYANT, Judge.

    Emmaline E. Shella (plaintiff) appeals an order dated 17 June 2003, allowing a motion to dismiss several but not all of her claims.
    Plaintiff filed this pro se action on 24 October 2002, alleging claims of breach of contract, fraud, and “tort,” and seeking compensatory and punitive damages for damages arising out of an agreement between the parties. In their agreement, defendant, an attorney, agreed to draft a separation agreement for plaintiff. Plaintiff's complaint claims she was charged $750.00 for defendant's services even though defendant had not met with hernor drafted an agreement that was satisfactory. On 24 February 2003, defendant moved to dismiss plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), (2), (4), (5) and (6). On 17 June 2003, the trial court allowed defendant's motion pursuant to Rule 12(b)(6) and dismissed plaintiff's claims for fraud, tort, and punitive damages. The trial court denied the motion to dismiss as to the claim for breach of contract and the recovery of plaintiff's $750.00. On 6 August 2003, the trial court denied plaintiff's motion for amendment of the 17 June 2003 order.


    The threshold issue is whether plaintiff's appeal is interlocutory 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) (citation omitted), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997)); see also N.C.G.S. § 1-277(a) (2003);N.C.G.S. § 7A-27(d)(1) (2003).
    In the case sub judice, plaintiff appeals an order dismissing three of her four claims for relief. The order was not certified for immediate appeal by the trial court, and is clearly an interlocutory order since it did not dispose of all claims between the parties. Walker v. Sloan, 137 N.C. App. 387, 391, 529 S.E.2d 236, 240-41 (2000). Thus, plaintiff's right to an immediate appeal, if one exists, depends on whether the order affects a substantial right. Plaintiff claims the trial court's ruling deprives her of her substantial right to have her claims tried by a jury. However, this is not a right that will be lost absent immediate review. Should the Court later determine that the trial court was in error, plaintiff would be entitled to a jury trial upon remand.
    Accordingly, because there was no final judgment in this case, nor were any substantial rights of the parties affected, we hold that this appeal is premature. Plaintiff's appeal is therefore dismissed as interlocutory.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

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