RICHARD W. WILSON,
v. Iredell County
No. 04 CVS 0457
PATRICIA L. MCCURDY AND
HUSBAND, MICHAEL D. MCCURDY,
Homesley, Jones, Gaines & Dudley, by L. Ragan Dudley, for
Eisele, Ashburn, Greene & Chapman, by John D. Greene, for defendant-appellees.
Plaintiff appeals from an order awarding partial summary
judgment to defendants. For the reasons discussed below, we
dismiss the appeal as interlocutory.
The materials before this Court reflect that plaintiff filed suit against defendants on 26 February 2004, seeking $83,451.00 plus accrued interest for work performed under a contract for the construction of a dwelling house on a parcel of land owned by defendants in Statesville, North Carolina. He also sought to enforce a lien upon the subject realty in the amount of $83,451.00plus interest, pursuant to a claim of lien filed 19 December 2003. In their answer, defendants challenged the validity of plaintiff's lien and asserted a counterclaim for breach of contract.
On 24 September 2004, defendants filed a motion for partial summary judgment, claiming that there exist no disputed issues of material fact as to the validity of the lien and the lien enforcement element of plaintiff's complaint should be dismissed as [a] matter of law. After a hearing, the trial court allowed defendants' motion and awarded them partial summary judgment as to the plaintiff's claim to enforce a lien[.] The order included a finding that plaintiff's lien was defective on its face[,] and provided that said lien at 03M953 is hereby declared null and void and . . . is hereby ordered to be canceled of record.
On appeal, plaintiff challenges the trial court's finding that his lien was facially defective. Alternatively, he claims the court erred by ruling on a moot issue[,] inasmuch as the lien was cancelled by the clerk upon defendants' deposit of the lien amount with the court on 13 April 2004. Plaintiff further avers that defendants waived objection to his claim of lien by discharging the lien pursuant to N.C.G.S. § 44A-16(5) (2003).
The order from which plaintiff appeals is interlocutory, inasmuch as it was "made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy." N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995). As a general matter, this Court lacksjurisdiction to consider an interlocutory appeal. See, e.g., Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). A party may take an immediate appeal from an interlocutory order only where (1) the order is final as to one or more claim or party and is certified for immediate appeal by the trial court pursuant to N.C.R. Civ. P. 54(b), or (2) 'the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.' Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 254 (1994) (quoting Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C. App. 738, 740, 370 S.E.2d 76, 78 (1988)). In either case, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.] Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253.
The trial court did not certify its order for immediate appeal pursuant to Rule 54(b), and plaintiff has failed to suggest any grounds for appellate review, as required by N.C.R. App. P. 28(b)(4). 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. at 380, 444 S.E.2d at 254. Accordingly, we must dismiss the appeal as premature even though the issue of appealability was not raised by the parties. Love v. Moore, 305 N.C. 575, 582, 291 S.E.2d 141, 146 (1982).
Judges MCGEE and HUDSON concur.
Report per Rule 30(e).
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