An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
ure.
NO. COA05-40
NORTH CAROLINA COURT OF APPEALS
Filed: 1 November 2005
ELLEN (HEATON) HARRELL,
Individually, and
APPALACHIAN HOME CARE, LLC,
Plaintiffs,
v
.
Watauga County
No. 03 CVS 728
JAMES MADISON HEATON, III,
and wife, DORIS HEATON,
JAMES MADISON HEATON, IV,
Individually, and PREMIER PERSONAL
CARE AND HEALTH SERVICES, INC.,
Defendants.
Appeal by plaintiff from judgment entered 29 September 2004 by
Judge Charles C. Lamm, Jr. in Watauga County Superior Court. Heard
in the Court of Appeals 15 September 2005.
The Vetro Law Firm, P.C. by Michael Vetro and M. Shaun Lundy,
Attorneys for plaintiffs-appellants.
Maupin, Taylor, P.A. by Michael C. Lord and Terence D.
Friedman, Attorneys for defendants-appellees.
LEWIS, Judge.
Ellen Harrell (Harrell) and Appalachain Home Care
(collectively, plaintiffs) appeal a trial court order granting
summary judgment for James Heaton III (James III) and his wife,
Doris Heaton, James Heaton IV (James IV), and Premier Personal
Care and Health Services, Inc. (Premier) (collectively
defendants). For the reasons stated herein, we dismiss this
appeal as interlocutory.
The procedural history of this case is as follows: On 21 November 2003, plaintiffs instituted a civil action against
defendants in Watauga County for breach of contract, malicious
prosecution, abuse of process, defamation, libel per se,
intentional infliction of emotional distress, and unfair and
deceptive trade practices. Defendants counterclaimed for breach of
fiduciary duty, interference with contractual relations and
prospective commercial advantage, breach of contract, trade secret
misappropriation, unfair competition, conversion, constructive
trust, and civil conspiracy. Plaintiffs moved for and were granted
summary judgment against defendants on the claims of breach of
fiduciary duty, misappropriation of trade secrets, conversion and
constructive trust.
Defendants deposed plaintiff Harrell on July 14-15, 2004.
During her deposition, Harrell asserted her Fifth Amendment rights
and refused to answer questions related to certain financial
transactions she engaged in while executive director of Premier.
Defendants filed a motion for summary judgment seeking dismissal of
all of plaintiffs' claims because Harrell asserted her Fifth
Amendment privilege against self-incrimination. The trial court
granted the motion and issued an order dismissing all of
plaintiffs' claims on 29 September 2004. Plaintiffs appeal.
_____________________________________
The dispositive issue is whether this appeal should be
dismissed because it is interlocutory and plaintiffs have not
adequately pleaded a substantial right. The general rule is that final judgments are always
appealable . . . . Tinch v. Video Industrial Services, 347 N.C.
380, 381, 493 S.E.2d 426, 427 (1997). A final judgment is one
that determines the entire controversy between the parties, leaving
nothing to be decided in the trial court. Ratchford v. C.C.
Mangum, Inc., 150 N.C. App. 197, 199, 564 S.E.2d 245, 247 (2002).
An interlocutory order may be appealed immediately if: (1) it
is final to a party or issue and the trial court certifies it for
appeal under N.C. Gen. Stat. § 1A-1, Rule 54(b), or (2) it affects
a substantial right of the parties. Appellants have the burden of
showing this Court that an appeal is proper. Johnson v. Lucas, __
N.C. App. __, __, 608 S.E.2d 336, 338, aff'd, __ N.C. __, __, __
S.E.2d __, __ (No. 158A05, October 7, 2005). If the appeal is from
an interlocutory order, the appellant must include sufficient
facts and argument to support appellate review on the ground that
the challenged order affects a substantial right in its statement
of grounds for appellate review in appellant's brief. N.C.R. App.
P. 28(b)(4) (2005). It is appellant's burden to present
appropriate grounds for this Court's acceptance of an interlocutory
appeal, . . . and not the duty of this Court to construct
arguments for or find support for appellant's right to appeal[.]
Thompson v. Norfolk S. Ry. Co., 140 N.C. App. 115, 121, 535 S.E.2d
397, 401 (2000) (citations and quotations omitted). Where the
appellant fails to carry the burden of making such a showing to the
court, the appeal will be dismissed. Lucas, __ N.C. App. at __,
608 S.E.2d at 338. In this case, the order appealed from granted summary judgment
as to all of plaintiffs' claims, however, it did not dispose of
defendants' counterclaims for breach of contract, interference with
contractual relationship and prospective commercial advantage,
unfair competition and civil conspiracy. Thus, the order appealed
from is interlocutory. Appellant asserts the appeal is from a
final judgment dismissing all claims [and] is authorized by
N.C.G.S. § 1-277. Appellant fails to state any grounds for
appellate review of the interlocutory order and provides no
discussion of any substantial right that may be effected if this
Court does not review the order. The judgment was not certified
for appeal by the trial court pursuant to Rule 54(b) of the Rules
of Civil Procedure. Therefore, we dismiss this appeal as
interlocutory.
Dismissed.
Judges HUDSON and ELMORE concur.
Report per Rule 30(e).
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