IN THE MATTER OF THE WILL Durham County
OF ROBERT LEE DUNN No. 95 E 751
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Everett & Everett, by Sandra Herring, for propounder-
appellant.
Nick Galifianakis & Associates, by Nick Galifianakis and David
Krall, for caveator-appellee.
CALABRIA, Judge.
William Dunn, propounder (“appellant”), appeals the 12 May
2004 Order for Relief setting aside a caveat which was dismissed
with prejudice. We dismiss the appeal as interlocutory.
Appellant, son of Robert Lee Dunn (“testator”), filed the
first caveat to a will and codicil dated 20 September 1994 and 26
October 1994 offered by his brother, co-executor Joseph J. Dunn
(“appellee”), as the final will of their father. A jury found the
will and codicil were procured by undue influence. A previous will
of testator, dated 29 August 1994, had been destroyed by co-
executor and daughter of testator, Virginia Dunn Jones (“Virginia
Dunn”), at testator's behest and in his presence on 13 October
1994. The question of whether or not the August will was revokedby the actions of testator, however, was not submitted to the jury.
Pursuant to N.C. R. Civ. P. 49(c), the trial court found the August
will was destroyed and concluded that testator died intestate.
Appellant appealed and the Court of Appeals reversed and remanded.
A Revised Judgment was ordered on 22 October 1998 noting that any
interested party could submit a paper writing purporting to be the
last will of testator. Appellant replaced the previous co-
executors and qualified as Executor of testator's estate on 23
March 1999, pursuant to the August 1994 will.
Appellee contested the validity of the August will submitted
to probate and filed the second caveat on 21 March 2002. One month
later, at an alignment hearing, Superior Court Judge Abraham Penn
Jones (“Judge Jones”) dismissed certain individuals who filed the
caveat as disinterested parties, ordered appellee to determine
whether there were any additional parties in interest and if so to
properly serve them for purposes of alignment and further ordered
Virginia and Patricia Dunn, as parties aligned with appellee, to
post $200.00 bond with the court. In May of 2002, appellee died
without complying with each of Judge Jones' orders.
The case was called for trial on 2 June 2003. Counsel for
appellee failed to appear and no personal representative had been
substituted for appellee. Appellant moved, in the absence of
appellee counsel, to dismiss himself as well as Virginia and
Patricia Dunn as parties to the caveat, appoint a public
administrator for the estate of appellee, and identify any other
parties in interest. Superior Court Judge J. B. Allen, Jr.,granted all three motions on 12 June 2003. After this hearing but
before the appointment of a public administrator, Timothy R. Dunn,
appellee's son, qualified as administrator of his father's estate.
On 22 December 2003, appellant moved to dismiss the caveat for
failure to prosecute and comply with court orders. Superior Court
Judge Henry W. Hight, Jr., sua sponte, substituted Timothy Dunn for
the deceased appellee, ordered him to serve all interested parties,
and set the case for trial. When appellee's counsel failed to
attend the trial date on 23 February 2004, Superior Court Judge
Milton F. Fitch granted appellant's motion to dismiss with
prejudice under N.C. R. Civ. P. 41(b) for failure to comply with
the previous court orders.
On 23 March 2004, appellee filed a motion for relief pursuant
to N.C. R. Civ. P. 60(b). Following two hearings regarding
appellee's motion for relief, on 12 May 2004 Superior Court Judge
Ronald L. Stephens granted appellee's motion, vacated the 23
February 2004 involuntary dismissal and set the caveat for trial.
Appellant appeals.
Appellant contends the May order is immediately appealable
because the trial court certified the May order as a final judgment
and a substantial right was involved. We disagree.
Generally, an interlocutory order is not immediately
appealable. Interlocutory orders are “made during the pendency of
an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine
the entire controversy.” Veazey v. Durham, 231 N.C. 354, 362, 57S.E.2d 375, 381 (1950). In contrast, final judgments, which are
immediately appealable, “dispose[] of the cause as to all the
parties, leaving nothing to be judicially determined between them
in the trial court.” Id. at 361-62. Furthermore, “[a]ppellate
procedure is designed to eliminate the unnecessary delay and
expense of repeated fragmentary appeals, and to present the whole
case for determination in a single appeal from the final judgment.”
Raleigh v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)
(emphasis added). Accordingly, the central question before this
Court is whether the trial court's 60(b) order is interlocutory or
a final judgment.
Appellant's appeal of the trial court's 12 May 2004 Order for
Relief is interlocutory and not a final judgment. In Metcalf v.
Palmer, 46 N.C. App. 622, 623, 265 S.E.2d 484, 484 (1980), this
Court examined a breach of contract case where an involuntary
dismissal against the plaintiff, due to plaintiff counsel's failure
to appear, was set aside under N.C. R. Civ. P. 60(b) and the case
returned to the regular calendar for trial. This Court, noting the
nature of the trial court's order as interlocutory, stated “[the
order] does not affect any substantial right of the defendants
which cannot be protected by timely appeal from the trial court's
ultimate disposition of the entire controversy on the merits.”
Id., 46 N.C. App. at 624 (emphasis added). Similarly, in the
instant case because the trial court's May 2004 Order is
interlocutory and appellant can appeal any later trial court
disposition with which it takes issue, the “only effect is torequire [the appellants] to face a trial on the merits....” Id.
Such an occurrence is not too difficult a hardship to face in
seeking an appropriate resolution.
Appellant contends that since the trial court certified the
appeal under N.C. R. Civ. P. 54(b) and a substantial right exists,
the order, even if interlocutory, is immediately appealable. While
the above two circumstances are appropriate means to appeal an
interlocutory order, see Cagle v. Teachy, 111 N.C. App. 244, 245-
47, 431 S.E.2d 801, 802-03 (1993) (noting that both 54(b) and
substantial right claims are individual means where, if correctly
applied, immediate appeal is tenable), neither is applicable here.
First, “a trial judge [cannot] by denominating his decree a final
judgment make it immediately appealable under Rule 54(b) if it is
not such a judgment.” Tridyn Indus., Inc. v. Am. Mut. Ins. Co.,
296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979) (emphasis added),
accord Cagle, 111 N.C. App. at 247, 431 S.E.2d at 803. The May
2004 Order was improperly certified by the trial court as a final
judgment under N.C. R. Civ. P. 54(b).
Second, appellant possesses no substantial right that would
afford an immediate appeal. “[A] right is substantial only when it
will clearly be lost or irremediably adversely affected if the
order is not reviewable before final judgment.” Cagle, 111 N.C.
App. at 246, 431 S.E.2d at 802 (citation and internal quotation
marks omitted) (emphasis added). Our Supreme Court has noted that
ascertaining whether or not a substantial right exists is no easy
task and that “[i]t is usually necessary to resolve [this] questionin each case by considering the particular facts of that case and
the procedural context in which the order from which appeal is
sought was entered.” Bernick v. Jurden, 306 N.C. 435, 439, 293
S.E.2d 405, 408 (1982) (quoting Waters v. Qualified Personnel,
Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978)). Appellant
claims that the right to know the identity of the parties and the
issues to be decided are substantial rights. Accordingly, once the
trial regarding the caveat commences, appellant will be apprised of
the parties and the issues and no right will be lost or adversely
affected absent an appeal. “The right to avoid...trial on the
disputed issues is not normally a substantial right that would
allow an interlocutory appeal.” Metcalf, 46 N.C. App. at 624, 265
S.E.2d at 485.
Since the trial court improperly certified its Rule 60(b)
order as immediately appealable under Rule 54(b) and neither of the
appellant's claimed rights are substantial, we hold the 60(b) order
is not immediately appealable.
For the foregoing reasons, the appeal of appellant-propounder
is dismissed and this cause is remanded to the trial court.
Appeal dismissed.
Judges WYNN and LEVINSON concur.
Report per Rule 30(e).
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