Appeal by plaintiff from an order dated 18 April 2005 by Judge
Yvonne Mims Evans in Lincoln County Superior Court. Heard in the
Court of Appeals 22 February 2006.
Roberts & Stevens, P.A., by K. Dean Shatley, II, for
plaintiff-appellant.
Erwin and Eleazer, P.A., by Fenton T. Erwin, Jr. and Peter F.
Morgan, for defendant-appellees.
BRYANT, Judge.
The Lincoln County Board of Education (plaintiff) appeals from
an order dated 18 April 2005 dismissing with prejudice its claims
against the San-Gra Corporation and Granger Construction Company
(defendants). For the reasons below, we dismiss this appeal as
interlocutory.
Facts
In February 1997, plaintiff contracted with defendant San-Gra
Corporation (San-Gra) to construct Love Memorial Elementary School
in Lincolnton, North Carolina. San-Gra subcontracted withdefendant Charley Company for the construction of the school's
roof. The school was completed in February 1998. On 26 February
1998, Charley Company gave plaintiff a written warranty whereby for
a period of five years, Charley Company would “make or cause to be
made such repairs to the roofing system as may be necessary to
maintain said roof in a water-tight condition, resulting solely
from faults or defects in material and labor supplied or approved
by CHARLEY COMPANY.”
Shortly after completion of the building the roof began to
experience water leaks. From 1999 through 2003, plaintiff alleges
it made several requests of San-Gra and Charley Company to address
the leaking roof. In 2003, Charley Company attempted to repair the
roof on at least two separate occasions. However, both attempts at
repair failed to fix the leaking roof. Plaintiff subsequently
filed suit against the San-Gra Corporation, Granger Construction
Company, Inc. (which plaintiff alleges is the successor corporation
to San-Gra), and David Farsaci, Inc. d/b/a Charley Company.
Procedural History
Plaintiff filed suit against defendants and others on 7
September 2004, claiming defendants breached both implied and
express warranties regarding the installation of the roof.
Defendants San-Gra Corporation and Granger Construction Company
subsequently filed answers subject to motions to dismiss pursuant
to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure.
On 11 April 2005 defendants' motions were heard before the
Honorable Yvonne Mims Evans. The motions of defendants San-GraCorporation and Granger Construction Company were granted by an
Order dated 18 April 2005; and plaintiff's claims, being barred by
the applicable statutes of limitations and repose, were dismissed
with prejudice. Plaintiff appeals.
_________________________
Interlocutory Appeal
Although none of the parties have addressed whether the trial
court's order was immediately appealable, from the record before
this Court, this appeal is from an interlocutory order.
Interlocutory orders and judgments are those “made during the
pendency of an action which do not dispose of the case, but instead
leave it for further action by the trial court in order to settle
and determine the entire controversy.”
Carriker v. Carriker, 350
N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citation omitted). While the
trial court dismissed plaintiff's claims against defendants San-Gra
Corporation and Granger Construction Company, the trial court's
order does not address plaintiff's claims against Charley Company.
From the record before this Court, plaintiff's claims against
Charley Company are still pending, and the order appealed from is
therefore interlocutory.
This Court has held that an interlocutory order is immediately
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(b) 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.
Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711,
713, 582 S.E.2d 321, 323 (2003) (citations and quotations omitted).
Additionally, “[w]hen an appeal is interlocutory, the statement [of
the grounds for appellate review] must contain 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).
“It is the 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 quotation marks omitted). As there is no Rule 54(b)
certification in the record before this Court, plaintiff is
entitled to pursue this appeal only if the order deprived it of a
substantial right that would be lost if we dismissed its appeal.
However, plaintiff does not address any substantial right it might
lose if this appeal were dismissed; plaintiff instead asserts it is
appealing from “a final judgment of the Superior Court dismissing
all claims against the Appellees[.]”
Plaintiff has violated the Rules of Appellate Procedure and
failed to carry its burden of showing why its appeal affects a
substantial right. “Where the appellant fails to carry the burden
of making such a showing to the court, the appeal will be
dismissed.”
Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d
336, 338 (citing
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 380, 444 S.E.2d 252, 254 (1994)),
aff'd, 360 N.C. 53, 619
S.E.2d 502 (2005). Further, our Supreme Court has held that “[t]he
North Carolina Rules of Appellate Procedure are mandatory and
'failure to follow these rules will subject an appeal to
dismissal.'”
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610
S.E.2d 360, 360 (per curiam) (quoting
Steingress v. Steingress, 350
N.C. 64, 65, 511 S.E.2d 298, 299 (1999)),
reh'g denied, 359 N.C.
643, 617 S.E.2d 662 (2005).
Appeal Dismissed.
Judges HUNTER and HUDSON concur.
Report per Rule 30(e).
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