EMPIRE HOMES, INC.,
No. 04 CVS 615
EUGENE KEELING and
Holt, Longest, Wall & Blaetz, P.L.L.C., by Frank A. Longest,
Jr., for plaintiff-appellant.
Northern Blue, L.L.P., by David M. Rooks, for defendant- appellees.
On 17 March 2004, plaintiff Empire Homes, Inc., initiated this action claiming breach of contract and quantum meruit, seeking to recover the balance due under a construction contract with defendants Eugene D. and Lisa R. Keeling (the Keelings). Defendants answered and counterclaimed for breach of contract. On 2 September 2004, defendants moved for summary judgment on the claims against them, which motion the court granted by order entered 20 January 2005. Plaintiff appeals. As discussed below, we dismiss. Plaintiff is a licensed general contractor, holding a limited license. In April 2002, defendants contacted plaintiff about building a home for them in Orange County, and shortly thereafter, they entered into a contract for the purchase of real estate and construction of a home. The parties also contracted for plaintiff to build an equestrian riding facility and in-ground swimming pool. However, after defendants encountered difficulty in arranging financing for the projects, plaintiff combined all three projects into a single contract (the contract), which the parties signed on 17 May 2002. The contract included purchase of real estate for $139,000.00, construction of a home valued at $432,101.00 plus $42,899.00 in upgrades, a riding facility valued at $100,572.00, an in-ground swimming pool and deck at $36,000.00, and additional improvements, with a total contract price of $842,484.00. The contract listed the home as Phase 1, the riding facility as Phase 2, and the swimming pool as Phase 3. Defendants moved into the home upon completion, and took possession of the riding facility upon substantial completion. Plaintiff offered to complete certain punch list items, but defendants refused. Plaintiff alleges defendants owe a balance of $154,152.76 for its construction services.
First we note that this appeal is interlocutory because defendants' counterclaims were still pending when the trial court granted them summary judgment on the claims of plaintiff. An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requiresfurther 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). There are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review. CBP Resources, Inc. v. Mountaire Farms, Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 153 (1999) (internal quotation marks omitted).
The North Carolina Rules of Appellate Procedure require that briefs to this Court include a statement of the grounds for appellate review containing sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right. N.C. R. App. P. 28(b)(4). The North Carolina Rules of Appellate Procedure are mandatory and 'failure to follow these rules will subject an appeal to dismissal.' Viar v. N.C. DOT, 359 N.C. 400, 401, 610 S.E.2d 360, 360, rehearing denied, 359 N.C. 643, 617 S.E.2d 662 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). Further, [i]t is not the role of the appellate courts . . . to create an appeal for an appellant. Id. at 402, 610 S.E.2d at 361.
Here, plaintiff failed to include a statement of grounds for appellate review, and neither party discusses the interlocutorynature of the appeal. Although the record reveals that the trial court certified this appeal pursuant to Rule 54(b) in its order granting defendant's motion for summary judgment, this certification is not dispositive. McNeil v. Hicks, 111 N.C. App. 262, 264, 431 S.E.2d 868, 869 (1993), disc. review denied, 335 N.C. 557, 441 S.E.2d 118 (1994). Thus, we dismiss this appeal.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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