JG Winston-Salem v Cent. Carolina Surg., (03-1515) 07/06/2004

Appeal by defendant from an order entered 31 July 2003 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 28 June 2004.

Keziah, Gates & Samet, L.L.P., by Andrew S. Lasine, for plaintiff-appellee.

Douglas S. Harris for defendant-appellant.

STEELMAN, Judge.

    Plaintiff owns and operates Hanes Mall in Winston-Salem, North Carolina. Defendant is a professional association conducting business as Southeastern Eye Center. On 10 September 1999, the parties entered into an agreement whereby plaintiff leased premises in Hanes Mall to defendant. Defendant agreed to pay plaintiff a fixed minimum rent of $46,680.00 per year. Additionally, defendant agreed to pay plaintiff an additional rent equal to 5% of gross sales in excess of $933,600.00. Defendant also agreed to pay a common area charge.    Plaintiff filed this action on 14 April 2003 alleging that defendant owed $25,717.36 for percentage rent and common area maintenance expense. Plaintiff additionally sought attorney's fees in the amount of $3,857.60, and interest. Defendant answered the complaint, denied the allegations, and asserted as an affirmative defense that the portion of the lease requiring a percentage of sales to be paid as additional rent was void as a matter of public policy. Specifically, defendant claimed that the provision violated the medical rule of ethics regarding fee splitting.
    On 27 June 2003, plaintiff moved for partial summary judgment as to the affirmative defense that the percentage rent provision of the lease was void as against public policy. On 31 July 2003, the trial court granted partial summary judgment in favor of plaintiff. Defendant appeals.
    The threshold issue is whether plaintiffs' appeal is premature, 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)(citation omitted). 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 wouldbe lost absent immediate review.'

Turner v. Norfolk Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000)(citation omitted); see also N.C. Gen. Stat. § 1-277(a) (2003); see also N.C. Gen. Stat. § 7A-27(d)(1) (2003).
     Here, defendant appeals from an order granting partial summary judgment. “A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993)(citations omitted). Further, the trial court did not certify the case for immediate appeal pursuant to Rule 54(b).
    We also note that defendant fails to include a statement in its brief stating the grounds for interlocutory review.     N.C.R. App. P. 28(b)(4) requires that the brief contain a statement of the grounds for appellate review containing “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” “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)(citations omitted).
    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, and therefore dismiss it as interlocutory.
    APPEAL DISMISSED.
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***