An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NO. COA 05-677
NORTH CAROLINA COURT OF APPEALS
Filed: 20 June 2006
S.N.R. MANAGEMENT CORP.,
. Durham County
No. 04 CVS 05305
DANUBE PARTNERS 141, LLC,
JAMES M. ADAMS, SR., ROSA BELVIN
PROPERTIES, LLC, MILES C.
BELVIN, HOWARD EUGENE BELVIN,
and LEE MCGREGOR
Plaintiff appeals from orders entered 30 December 2004 by
Judge Kenneth C. Titus in the Superior Court in Durham County.
Heard in the Court of Appeals 9 February 2006.
Stark Law Group, PLLC, by Thomas H. Stark & Fiona V. Ginter,
Maupin Taylor, P.A., by Gilbert C. Laite, III, & Heather E.
Bridgers, for defendant-appellees Danube Partners 141, LLC, &
James M. Adams.
Hedrick, Murray & Cheek, PLLC, by Josiah S. Murray, III, for
defendant-appellees Rosa Belvin Properties, LLC, Miles C.
Belvin, & Howard Eugene Belvin.
Boxley, Bolton & Garber, LLP, by Ronald H. Garber, for
defendant-appellee Lee McGregor.
In 2004, plaintiff S.N.R. Management Corporation (SNR) sued
defendants James M. Adams (Adams), Danube Partners L.L.C.,
(Danube), Lee McGregor (McGregor), and Rosa Belvin Properties(RBP), Miles C. Belvin, and Eugene Belvin (collectively referred
to as the Belvin defendants), for claims associated with a
contract to purchase real estate. Defendant Danube also filed a
counterclaim for slander of title, which remains pending. All
defendants filed motions to dismiss, which the trial court granted.
Plaintiff appeals. For the reasons below, we dismiss.
In April 2002, SNR entered into a contract with RBP to
purchase approximately 141.5 acres of land in Durham County for
$2,355,000. SNR and RBP agreed to extend the original closing
deadline of 15 April 2003 several times with the third and last
extension establishing a closing deadline of 30 January 2004. SNR
asserts that it was unable to close by this deadline because of the
possible existence of an endangered plant species on the property
which would prohibit SNR
's development plans. SNR attempted to
negotiate a further extension of the closing deadline, but RBP
refused this request. In late March 2004, RBP sold the property to
Danube, a company formed by Adams. While under contract with RBP,
SNR discussed the property with various end-
users and retail
developers, including Adams. SNR alleges that Adams and Danube
intentionally discouraged RBP from extending the closing date for
SNR. McGregor served as SNR
's realtor in the deal with RBP, and
SNR alleges that he furnished information he received from SNR toAdams without SNR
's knowledge and that he was aware, but did not
inform SNR, that Adams and Danube were negotiating with RBP for the
sale of the property.
Generally, an order is only appealable if it is final and not
Currin & Currin Const., Inc. v. Lingerfelt
, 158 N.C.
App. 711, 713, 582 S.E.2d 321, 323 (2003). An order is
interlocutory when it does not entirely dispose of the case;
pending counterclaims render an order interlocutory.
because there is a pending counterclaim, appellant
's appeal is
interlocutory. However, an interl
appealable if (1) the order is final as to some claims or parties,
and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54
that there is no just reason to delay the appeal, or (2) the
order deprives the appellant of a substantial right that would be
lost unless immediately reviewed.
158 N.C. App. at 713, 582
S.E.2d at 323.
Under either of these two circumstances, it is the
appellant's burden to present appropriate grounds for [the]
[c]ourt's acceptance of an interlocutory appeal . . . .
v. Raleigh Oaks Joint Venture
115 N.C. App. 377, 379, 444 S.E.2d
252, 253 (1994)
(appeal dismissed because appellant didn
burden of showing the order violated a substantial right)
. It is
not the duty of this [c]ourt to construct arguments for or findsupport for [the] appellant's right to appeal from an interlocutory
115 N.C. App. at 380, 444 S.E.2d at 254.
brief, SNR asserts grounds for appellate review
pursuant to N.C. Gen. Stat.
27(b) (2005). However, N.C. Gen.
27(b) requires a final judgment of a superior court.
. Here, because this is an interlocutory appeal,
not grant SNR the right to appeal. Further, because there is no
Rule 54(b) certification and SNR has not cited valid grounds for
appeal, this case is not properly before the Court.
It is well-
Carolina Rules of Appellate Procedure are mandatory and failure to
follow these rules will subject an appeal to dismissal.
, 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (internal
quotation marks omitted). Furthermore, by failing to argue that it
would lose a substantial right absent immediate review, SNR has not
met its burden of presenting
appropriate grounds for [the] Court's
acceptance of an interlocutory appeal.
115 N.C. App. at
379, 444 S.E.2d at 253. Because it is not our duty to construct an
appeal for appellant, we must dismiss SNR
, 359 N.C.
at 401, 610 S.E.2d at 360;
115 N.C.App. at 380, 444
S.E.2d at 254.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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