An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-646


Filed: 7 June 2005

ROBIN HINSON, Individually
and as Administratrix of
HINSON, JR., and as Guardian
ad Litem for minors, TRAVIS

v .                         Wilkes County
                            No. 03 CVS 727

JARVIS, as Administrators of

    Appeal by plaintiff from judgment entered 5 March 2004 by Judge Melzer A. Morgan, Jr., in Wilkes County Superior Court. Heard in the Court of Appeals 16 February 2005.

    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.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

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