An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-160
NORTH CAROLINA COURT OF APPEALS
Filed: 15 February 2005
HAYDEN HILL, a minor, by and
through his Guardian Ad Litem,
HARVEY GENE HILL, JR. and REGINA
HILL, individually and as parent
and natural Guardian of the minor,
HAYDEN HILL,
Plaintiffs,
v
.
Johnston County
No. 02 CVS 3062
TERESA HENSON WEST, C.F. WEST,
INC., CHARLES F. WEST, SR.,
ANNETTE WEST, CHARLES F. WEST,
JR., and RICHARD LESTER,
Defendants.
Appeal by plaintiffs from order entered 28 October 2003 by
Judge Knox V. Jenkins, Jr., in Johnston County Superior Court.
Heard in the Court of Appeals 22 September 2004.
Lucas, Bryant, Denning & Ellerbe, P.A., by Sarah Ellerbe, for
plaintiffs_appellants.
Bailey & Dixon, L.L.P., by Kenyann Brown Stanford and Hannah
G. Styron, for defendants-appellees C.F. West, Inc., Charles
F. West, Sr., and Annette West.
No brief filed on behalf of defendant-appellee Teresa Henson
West.
No brief filed on behalf of defendant-appellee Charles F.
West, Jr.
No brief filed on behalf of defendant-appellee Richard Lester.
GEER, Judge.
This litigation arose out of a traffic accident occurring when
defendant Teresa Henson West, who was intoxicated, crossed over ahighway median while driving a van owned by defendant C.F. West,
Inc. Plaintiffs appeal from an order granting summary judgment to
defendants C.F. West, Inc., Charles F. West, Sr., and Annette West.
Because the underlying lawsuit is still pending with respect to
Teresa Henson West and the trial court did not include a Rule 54(b)
certification in its order, we dismiss the appeal as interlocutory.
Facts
Defendant C.F. West, Inc. ("the Company") is a construction
business based in New Bern, North Carolina, operated by the family
of Teresa West's husband, Charles F. West, Jr. Charles F. West,
Sr. and his wife Annette West are Charles West, Jr.'s parents and
serve respectively as President and Secretary/Treasurer of the
Company. Charles West, Jr. and defendant Richard Lester are
employees of the Company. Teresa West worked for the Company from
1996 to 1997, but has not been employed by it since that time.
On 21 January 2001, Charles West, Jr. and Teresa West were
married, but estranged. Nonetheless, Teresa was staying for the
weekend at her husband's home on Howell Road in New Bern. Charles
West, Jr. knew that his wife did not have a driver's license; that,
even so, she had on several occasions driven her own vehicle and,
without permission, his vehicle; and that she had been convicted in
1999 of driving without a license and without insurance. Charles
West, Sr. testified that he told Teresa, the week before the
accident, that his company's work vehicles were off limits.
At that time, because the Company did not own a garage, it was
the practice of the Company to leave one or more of its vehicles atthe Howell Road residence when they were not in use. Although it
was the Company's stated policy to keep its vehicles locked when
not in use, with the keys in the possession of an authorized
employee, Lester testified that it was common practice for
employees to leave the keys on the vehicle's console.
On 20 January 2001, Lester parked a van owned by the Company
at the Howell Road residence and left it unlocked with the keys on
the console. The van remained there overnight. On 21 January
2001, the day of the accident, Charles West, Jr. was working on a
construction site with his father, and Teresa was at the Howell
Road residence by herself. After becoming intoxicated, she found
the keys in the unlocked van and set off in the van for an unknown
destination.
Shortly after she left the Howell Road residence she passed
her husband who was returning home from work. Charles West, Jr.
immediately turned around and tried to follow her, but when he was
unable to keep up, he turned around again and went back to Howell
Road. After his father arrived a few minutes later, the two men
drove towards Teresa's mother's house, where they assumed she had
been going.
At that time, plaintiff Harvey Gene Hill was traveling west on
U.S. Highway 70 with his wife Regina and son Hayden. Teresa, who
was driving east on the same highway, crossed over the median and
crashed into the Hill family vehicle, seriously injuring Hayden
Hill. Charles West, Jr. and his father arrived shortly after the
accident occurred. Plaintiffs filed suit in Johnston County Superior Court
against Teresa West, Charles West, Jr., Charles West, Sr., Annette
West, and the Company on 16 October 2002. Plaintiffs subsequently
added Lester as a defendant on 18 December 2002. Each of the
defendants filed a motion to dismiss under Rule 12(b)(6) for
failure to state a claim for relief. The trial court granted the
motion only as to Lester and Charles West, Jr. on 17 February
2003. The remaining defendants, except for Teresa West, filed a
motion for summary judgment on 20 August 2003. On 28 October 2003,
the trial court granted the motion, leaving Teresa West as the only
defendant in the litigation. Plaintiffs have appealed the 28
October 2003 order.
Discussion
Although none of the parties in this case have addressed
whether the summary judgment order was immediately appealable, it
is well-settled that we must examine the issue of the interlocutory
nature of an appeal
sua sponte. "Sound policy exists for the
refusal of the appellate courts to entertain appeals from
interlocutory orders. This same sound policy requires the
appellate courts to make inquiry as to the appealability of a case
even though the question is not raised by the parties."
Shaver v.
N.C. Monroe Constr. Co., 54 N.C. App. 486, 487, 283 S.E.2d 526, 527
(1981) (dismissing appeal as interlocutory).
An order is interlocutory if it does not dispose fully of a
case, but rather requires further action by the trial court in
order to finally determine the rights of all the parties involvedin the controversy.
Veazey v. City of Durham, 231 N.C. 357, 362,
57 S.E.2d 377, 381 (1950). Because plaintiffs' claims against
Teresa White are still pending, the summary judgment order appealed
by the plaintiffs is an interlocutory order. An interlocutory
order is immediately appealable only if (1) the order is final as
to some claims or parties and the trial court has certified
pursuant to Rule 54(b) of the Rules of Civil Procedure that there
is no just reason to delay the appeal, or (2) the order deprives
the appellant of a substantial right that would be lost in the
absence of an immediate appeal.
Currin & Currin Constr., Inc. v.
Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003).
Since the trial court did not include a Rule 54(b)
certification in the summary judgment order, plaintiffs are
entitled to pursue this appeal only if that order deprived them of
a substantial right that would be lost if we dismissed their
interlocutory appeal. An appellant bears the burden of
establishing the existence of a substantial right.
Embler v.
Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001).
Consequently, Rule 28(b)(4) of the Rules of Appellate Procedure
mandates that appellants' briefs include "[a] statement of the
grounds for appellate review." With respect to interlocutory
appeals for which there is no Rule 54(b) certification, "the
[appellants'] statement must contain sufficient facts and argument
to support appellate review on the ground that the challenged order
affects a substantial right." N.C.R. App. P. 28(b)(4). Plaintiffs' brief, in violation of Rule 28(b)(4), fails to
include a statement of grounds for appellate review or any other
explanation as to why an interlocutory appeal should be allowed.
As we have previously stressed, "[i]t 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). Nevertheless, we have reviewed the record and briefs and
can identify no substantial right that will be lost to plaintiffs
in the absence of an immediate appeal. We therefore dismiss the
appeal as interlocutory.
Dismissed.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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