RICHARD W. WILSON,
Plaintiff,
v. Iredell County
No. 04 CVS 0457
PATRICIA L. MCCURDY AND
HUSBAND, MICHAEL D. MCCURDY,
Defendants.
Homesley, Jones, Gaines & Dudley, by L. Ragan Dudley, for
plaintiff-appellant.
Eisele, Ashburn, Greene & Chapman, by John D. Greene, for
defendant-appellees.
LEVINSON, Judge.
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).
Dismissed.
Judges MCGEE and HUDSON concur.
Report per Rule 30(e).
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