NO. COA03-1366
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.
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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.
Dismissed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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