Appeal by plaintiffs from order entered 3 July 2003 by Judge
Gary E. Trawick in Pitt County Superior Court. Heard in the Court
of Appeals 25 May 2004.
Ward and Smith, P.A., by Donalt J. Eglinton and Lynwood P.
Evans, for plaintiff-appellants.
Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by George B.
Mast, for defendant-appellee Kathy Conway.
Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for
defendant-appellee David Lee.
Daughtry, Woodard, Lawrence and Starling, L.L.P., by Kelly K.
Daughtry for defendant-appellee Security Credit Corporation.
LEVINSON, Judge.
Plaintiffs are engaged in the business of providing financing
for the purchase of used vehicles in Johnston County, North
Carolina. Defendant Kathy Conway was an employee and corporate
officer of Smithfield Financial from July 2000 until May 2002. In
the spring of 2002, defendant David Lee started Security Credit,which also provides used car financing in Johnston County. In May
2002 Conway resigned from Smithfield Financial and went to work for
Security Credit, and in July 2002 she was formally removed from
Smithfield Financial's board of directors.
On 15 August 2002 plaintiffs filed suit against defendants,
seeking compensatory and punitive damages. Plaintiffs brought
claims against all defendants for civil conspiracy and unfair and
deceptive trade practices, and brought additional claims against
defendant Conway for misappropriation of funds, misappropriation of
corporate opportunity, constructive fraud, and breach of fiduciary
duty. Defendants each moved for summary judgment. On 3 July 2003
the trial court entered an order for partial summary judgment in
favor of defendants. Specifically, the trial court granted summary
judgment for all defendants on plaintiffs' claims of civil
conspiracy and unfair and deceptive trade practices, and denied
Conway's motion for summary judgment on plaintiffs' other claims
against her. Plaintiffs appeal.
Plaintiffs argue that the trial court erred by granting
partial summary judgment in favor of defendants, on the grounds
that there are genuine issues of material fact regarding whether
Conway committed certain acts in violation of her fiduciary duties,
and whether the other defendants conspired with her to commit these
acts. We conclude plaintiffs' appeal is interlocutory and must be
dismissed. An order “is either interlocutory or the final determination
of the rights of the parties.” N.C.G.S. § 1A-1, Rule 54(a) (2003).
Interlocutory orders are those “made during the pendency of an
action which do not dispose of the case, but instead leave it for
further action by the trial court in order to settle and determine
the entire controversy.”
Carriker v. Carriker, 350 N.C. 71, 73,
511 S.E.2d 2, 4 (1999). Interlocutory orders are immediately
appealable under two circumstances. “[I]f the order or judgment is
final as to some but not all of the claims or parties, and the
trial court certifies the case for appeal pursuant to N.C. Gen.
Stat. § 1A-1, Rule 54(b), an immediate appeal will lie.”
N.C.
Dept. of Transportation v. Page, 119 N.C. App. 730, 734, 460 S.E.2d
332, 334 (1995) (citations omitted). Or, an interlocutory order
may be immediately appealed if it “affects a substantial right of
the appellant that would be lost without immediate review.”
Embler
v. Embler, 143 N.C. App. 162, 165, 545 S.E.2d 259, 261 (2001)
(citation omitted). This rule is intended to “prevent fragmentary
and premature appeals[,]”
Bailey v. Gooding, 301 N.C. 205, 209,
270 S.E.2d 431, 434 (1980), and to “'present the whole case for
determination in a single appeal from the final judgment.'”
Hunter
v. Hunter, 126 N.C. App. 705, 708, 486 S.E.2d 244, 245-46 (1997)
(quoting
Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671
(1951)).
In the instant case, the trial court certified that its order
“represents a final judgment on all claims asserted againstdefendants David Lee and Security Credit Corporation and that there
is no just reason to delay plaintiffs' appeal.” However:
Rule 54(b) certification by the trial court is
reviewable by this Court on appeal in the
first instance because the trial court's
denomination of its decree “a final . . .
judgment does not make it so,”
if it is not
such a judgment. Similarly, the trial court's
determination that there is no just reason to
delay the appeal, while accorded great
deference, cannot bind the appellate courts
because “ruling on the interlocutory nature of
appeals is properly a matter for the appellate
division, not the trial court.”
First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242,
247, 507 S.E.2d 56, 60 (1998) (quoting
Industries, Inc. v.
Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979), and
Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249
(1984)).
Plaintiffs contend there are genuine issues of fact regarding
whether the defendants conspired for defendant Conway to breach her
fiduciary duties to plaintiffs. Defendants, on the other hand,
assert that Conway did not breach any fiduciary duty owed to
plaintiffs, and that there is no evidence of an agreement among
defendants to breach Conway's fiduciary duties. The parties thus
agree that the central issues in this appeal focus on whether there
was any breach, or agreement to breach, Conway's alleged fiduciary
duties. As the parties conceded at oral argument, the claims are
inextricably intertwined, and the failure of plaintiffs to prove
Conway's liability might foreclose the civil conspiracy and unfair
and deceptive trade practices claims. Under these circumstances,
we conclude the partial summary judgment order is interlocutory,notwithstanding the trial court's attempt to certify it for
immediate review.
We also conclude that no substantial right of the parties will
be lost by delaying consideration of plaintiffs' appeal until after
the trial on the claims brought against Conway. The parties
neither argued in their respective briefs, nor articulated at oral
argument, the existence of any substantial right that requires
immediate review. While plaintiffs suggest the possibility of
inconsistent verdicts, they fail to articulate how, on the facts of
this case, such a result might obtain. “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).
This appeal is
Dismissed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***