LIFE TIME WINDOWS AND
SIDING, INC. (a North
No. 02 CVD 1903
CYNTHIA M. MCLAWHORN,
Dal F. Wooten, for plaintiff-appellant.
James K. Antinore, for defendant-appellee.
Plaintiff Life Time Windows and Siding, Inc., (Life Time) initiated this action seeking to recover the cost of labor and materials used to perform work on defendants Terry and Cynthia McLawhorn's home. The McLawhorns counterclaimed for fraud and unfair and deceptive trade practices. Terry McLawhorn (Mr. McLawhorn) died prior to the case being heard without a jury on 9 February 2004, and Life Time proceeded against Cynthia McLahworn (Mrs. McLawhorn) only. The court concluded that no oral or implied contract existed between the parties and that defendants were not unjustly enriched, and entered judgment for defendants. Plaintiff appeals. Because we conclude that this appeal is interlocutory, we dismiss it.
On 5 April 2002, a representative from Life Time made a sales call at defendants' home. After making a presentation about Life Time's siding and window services, the representative and Mr. McLawhorn completed a sales contract including both defendants as parties. After Mrs. McLawhorn objected, the representative made out a second contract naming only Mr. McLawhorn and his son. Neither the representative nor any other agent for Life Time provided defendants with the truth in lending form required by N.C. Gen. Stat. § 25A-40(a). When Life Time began work on defendants' home, Mrs. McLawhorn repeatedly asked them to leave and stated that she did not want the work done. Mrs. McLawhorn also testified that Life Time performed defective work.
The record before us reveals only one judgment, entered 15 March 2004, which makes various findings and conclusions regarding plaintiff's claims and orders judgment for defendants. However, neither the order nor the transcript of the bench trial disposes of defendants' counterclaims. Because we can find no order disposing of the counterclaims, they are still pending and this appeal is interlocutory. Parties may appeal interlocutory orders in two circumstances: where the trial court certifies in the judgment that there is no just reason to delay the appeal, pursuant to N.C.R. Civ. P. 54(b), or where our failure to review the order prior to final determination would deprive the appellant of a substantial right. Jeffreys v. Raleigh Oaks Joint Venture, 115N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Here, the trial court did not certify this case for immediate appeal, nor does Life Time include in its statement of grounds for appellate review any mention of the pending counterclaims, or assertion of a loss of 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; instead, the appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Id. at 380, 444 S.E.2d at 254.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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