ROBIN HINSON, Individually
and as Administratrix of
the ESTATE OF BILLY DOUGLAS
HINSON, JR., and as Guardian
ad Litem for minors, TRAVIS
WAYNE HINSON and TRISTIN
CRAIG HINSON,
Plaintiff
v
.
Wilkes County
No. 03 CVS 727
RANDY JARVIS and MANSFIELD
JARVIS, as Administrators of
the ESTATE OF JOSEPH MANSFIELD
JARVIS and LINNIE PAULINE
JARVIS,
Defendants
Law Offices of Timothy D. Welborn, P.A., by Timothy D. Welborn
for plaintiff-appellant.
Bennett & Guthrie, P.L.L.C., by Rodney A. Guthrie and Roberta
B. King, and Joines & Greene, P.L.L.C., by Timothy B. Joines
for defendant-appellee Linnie Pauline Jarvis.
CALABRIA, Judge.
Robin Hinson (plaintiff) appeals from the trial court's
grant of summary judgment to Linnie Pauline Jarvis (defendant) on
all claims against defendant. We dismiss plaintiff's appeal as
interlocutory. This case involves a 31 March 2003 automobile accident in
which an automobile driven by Joseph Mansfield Jarvis (Mr.
Jarvis) struck an automobile driven by plaintiff. The accident
investigation revealed that Mr. Jarvis, who had suffered from
recurring seizures since 1995, experienced a seizure, lost control
of his vehicle, and accelerated through a stop light impacting
plaintiff's vehicle. The accident resulted in the deaths of Mr.
Jarvis and Billy Douglas Hinson, Jr., plaintiff's husband, and
serious injuries to defendant, plaintiff, and the two Hinson
children.
In her complaint, plaintiff alleged (1) negligence, gross
negligence, and negligent infliction of mental and emotional
distress against Mr. Jarvis and (2) imputed negligence and
negligent entrustment as well as liability based on joint
enterprise and the family purpose doctrine against defendant. On
5 March 2004, the trial court granted defendant's motion for
summary judgment on the claims against her. The trial court did
not certify the summary judgment for immediate appeal under N.C.
Gen. Stat. § 1A-1, Rule 54(b) (2003).
The dispositive issue is whether plaintiff's appeal must be
dismissed as interlocutory. Although the interlocutory nature of
the appeal was not raised by the parties, it is appropriately
raised by this Court sua sponte. Abe v. Westview Capital, 130
N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). A judicial
judgment, order, or decree is interlocutory if further action by
the trial court is necessary to determine the entire controversybetween all the parties. Tridyn Industries, Inc. v. American Mut.
Ins. Co., 296 N.C. 486, 488, 251 S.E.2d 443, 445 (1979).
In the instant case, the trial court's grant of summary
judgment to defendant was a final disposition with respect to all
claims against defendant. However, plaintiff's claims against Mr.
Jarvis have not been adjudicated. Therefore, the summary judgment
sub judice is interlocutory because further proceedings before the
trial court are necessary to determine the entire controversy
between all the parties.
In general, a party may not appeal an interlocutory judgment.
Myers v. Mutton, 155 N.C. App. 213, 215, 574 S.E.2d 73, 75 (2002).
However, an interlocutory judgment is immediately appealable under
the following two circumstances:
(1) the order is final as to some claims or
parties, and the trial court certifies
pursuant to [N.C. Gen. Stat.] § 1A-1, Rule
54(b) 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 unless immediately reviewed.
Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711,
713, 582 S.E.2d 321, 323 (2003). Under either of these two
circumstances, it is the appellant's burden to present appropriate
grounds for this Court's acceptance of an interlocutory appeal . .
. . Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,
379, 444 S.E.2d 252, 253 (1994). It is not the duty of this Court
to construct arguments for or find support for [the] appellant's
right to appeal from an interlocutory order[.] Id., 115 N.C.
App. at 380, 444 S.E.2d at 254. Moreover, the appellant's burdenis reflected in our appellate rules, which require an appellant
presenting an interlocutory appeal to include in his brief a
statement regarding the trial court's certification under N.C. Gen.
Stat. § 1A-1, Rule 54(b), or an argument regarding how the judgment
appealed from affects a substantial right. N.C. R. App. P.
28(b)(4) (2005).
Here, plaintiff's appeal is interlocutory because the case has
been adjudicated with respect to only one of the two defendants.
The trial court did not make a certification under N.C. Gen. Stat.
§ 1A-1, Rule 54(b), and plaintiff's brief failed to provide an
argument regarding a substantial right that would be lost absent
immediate appellate review. Additionally, when this Court raised
the interlocutory nature of plaintiff's appeal at oral argument,
plaintiff's counsel responded that the judgment appealed from
affected a substantial right but failed to provide any argument or
reasoning to support this assertion. Accordingly, this appeal must
be dismissed.
Dismissed.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).
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