ED S. MITCHELL, JR., HATTIE
B. MITCHELL, EVELYN M. SNEAD,
ROSA M. SUTTON,
Plaintiffs,
v
.
Craven County
No. 02 CVS 223
JAMES E. BROADWAY, t/a JAMES
E. BROADWAY LOGGING,
Defendant/Third-Party
Plaintiff
JAMES E. BROADWAY, d/b/a B&B
LOGGING COMPANY,
Plaintiff,
v.
DAL W. MITCHELL, DAL A. MITCHELL,
EDNA MITCHELL, ED S. MITCHELL, JR.,
EVELYN M. SNEAD, ROSA M. SUTTON,
WILLIAM P. MITCHELL, JR., EMMITT
G. MITCHELL, AARON C. MITCHELL,
EDNA M. WARNER, PRESTON MITCHELL, JR.,
CLIFTON MITCHELL, ANGELA M. COWELL,
RACHEL M. LEE, MATTIE M. SPEIGHTS,
WINIFRED NELSON, LIZZIE D. MITCHELL,
CLIFFORD MITCHELL, RALPH W. MITCHELL,
and WILLIAM M. MITCHELL,
Third-Party Defendants.
Lee, Hancock & Lasitter, P.A., by Moses D. Lasitter, for
plaintiffs and third-party defendants-appellants.
Chesnutt, Clemmons, Thomas & Peacock, P.A., by Gary H.
Clemmons, for defendant/third-party plaintiff-appellee.
STEELMAN, Judge.
This cause of action arose from allegations that defendant
unlawfully cut timber on plaintiffs' property without their
consent. The trial court granted partial summary judgment in favor
of defendant James A. Broadway, resulting in the dismissal of
plaintiffs' and third-party defendants' claim for double damages
pursuant to N.C. Gen. Stat. § 1-539.1(a) (2003). The trial court
also denied the motion for partial summary judgment of the
plaintiffs, Ed S. Mitchell, Jr., Hattie B. Mitchell, Evelyn M.
Snead and Rosa M. Sutton, and Third-Party Defendants, Edna Mitchell
Huggins, Ralph Mitchell and William M. Mitchell.
'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.' Estate of Graham
v. Morrison, 156 N.C. App. 154, 157, 576 S.E.2d 355, 357 (2003)
(quoting Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d
674, 677 (1993)). In addition, the trial court's denial of a
motion for summary judgment is not appealable as it is an
interlocutory order. Bockweg v. Anderson, 333 N.C. 486, 490, 428
S.E.2d 157, 160 (1993). The purpose of these rules is to prevent
fragmentary, premature and unnecessary appeals by allowing the
trial court to render a final judgment in the case before it is
presented to the appellate courts for review. Fraser v. Di Santi,
75 N.C. App. 654, 655, 331 S.E.2d 217, 218 (1985). There are two
instances in which an interlocutory order is immediately
appealable: (1) if the order is final as to some but not all of theclaims or parties, and the trial court certifies the case for
appeal under Rule 54(b) of the Rules of Civil Procedure, N.C. Gen.
Stat. § 1A-1, Rule 54(b) (2004); and (2) when the order being
challenged affects a substantial right of the appellant, which
would be lost absent immediate appellate review. N.C. Gen. Stat.
§ 1-277(a) (2004). See Lambe Realty Inv., Inc. v. Allstate Ins.
Co., 137 N.C. App. 1, 3, 527 S.E.2d 328, 330 (2000). Under both
of these two circumstances, it is the appellant's burden to present
appropriate grounds for this Court's acceptance of an interlocutory
appeal and our Court's responsibility to review those grounds.
Wood v. McDonald's Corp., ___ N.C. App. ___, ___, ___ S.E.2d ___,
___ (2004).
The trial court did not certify this matter for appeal
pursuant to Rule 54(b). Furthermore, while appellants recite N.C.
Gen. Stat. § 7A-27 as the grounds for appellate review, they make
no argument asserting that the trial court's entry of partial
summary judgment and denial of their motion for summary judgment
affects a substantial right.
For these reasons, this appeal is dismissed as being
interlocutory and not properly before this Court.
DISMISSED.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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