THOMAS L. NOBLOT, and wife,
DEBORAH J. NOBLOT,
No. 03 CVS 222
RICKEY D. TIMMONS; TERESA LYNN
TIMMONS; JULIE M. HANCE, ESQ.;
L. KEITH HANCE; AND HANCE &
Young, Morphis, Bach & Taylor, L.L.P., by Thomas C. Morphis,
Valeree R. Adams and Jimmy R. Summerlin, Jr., for plaintiff-
Poyner & Spruill L.L.P., by Parmele P. Calame and E. Fitzgerald Parnell, III, for defendant-appellees Julie M. Hance, L. Keith Hance, and Hance & Hance, P.A.
On 21 February 2003, plaintiffs Thomas L. and Deborah J. Noblot brought this action against defendants Richard P. McNeely, trustee, the Federal National Mortgage Association, Ricky D. Timmons, Teresa Lynn Timmons, and Julie M. Hance seeking an accounting from defendant Julie M. Hance, trustee, of funds deposited with her, and judgment against her for any funds wrongfully dispersed. Plaintiffs were later allowed to amend their complaint to add L. Keith Hance, and Hance and Hance, P.A., asdefendants and asserting additional claims against Julie and Keith Hance, and Hance and Hance, P.A., (collectively the Hance defendants). On 4 August 2004, the Hance defendants moved for summary judgment, and on 26 August 2004, the court granted the Hance defendants' motion for summary judgment and dismissed all claims against them. Plaintiffs appeal, and for the reasons discussed below, we dismiss this appeal as interlocutory.
Defendants Julie and Keith Hance are husband and wife attorneys practicing law together. Defendants Rickey and Teresa Timmons retained Julie Hance and the law firm of Hance and Hance, P.A., to represent them in a dispute over a lease-purchase agreement for a home owned by the Timmonses and leased by plaintiffs. As a result of this dispute, Julie Hance agreed to receive the monthly lease payments from plaintiffs on the Timmonses' behalf. After several months of payments had accumulated in Julie Hance's trust account, the Timmonses requested she disburse the funds to them. Although she believed the Timmonses were entitled to the funds pursuant the agreement, she contacted the State Bar to determine her obligations regarding the funds in her trust account. Based on her reading of the revised Rules of Professional Conduct and advice from the State Bar, Julie Hance disbursed the funds to the Timmonses. Plaintiffs believed that Hance wrongly disbursed the funds, and filed this action.
The dispositive issue in this case is whether plaintiffs' appeal must be dismissed as interlocutory. Plaintiffs' brief fails to include a statement of the grounds for appellate review asrequired by N.C. R. App. P. 28(b)(4), and neither party's brief addresses this issue. However, this Court may properly raise the interlocutory nature of the appeal sua sponte. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998).
An order is interlocutory if it does not determine the entire controversy between all of the parties. Id. A party may not immediately appeal from an interlocutory order, unless: (1) the trial court has entered a final judgment as to one or more but fewer than all of the claims or parties and has certified in the judgment, pursuant to N.C. R. Civ. P. 54(b), that there is no just reason to delay the appeal, or (2) the denial of an immediate appeal would affect a substantial right. Id.; N.C. R. Civ. P. 54(b) (2001); N.C. Gen. Stat. § 1-277 (2001). Further, it is the appellant's burden to present argument in his brief to this Court to support acceptance of the appeal, as 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.' Id. (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)).
Here, the order appealed from is interlocutory. While the trial court's order does constitute a final adjudication of the claims against the Hances, plaintiffs' claims against the Timmonses remain. Further, the trial court did not certify the order pursuant to Rule 54(b), and plaintiffs have failed to argue in their brief that a substantial right will be affected if theirappeal is not heard at this time. Accordingly, we must dismiss plaintiffs' appeal.
Judges STEELMAN and JACKSON concur.
Report per Rule 30(e).
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