An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-963


Filed: 16 May 2006


v .                         Lincoln County
                            No. 04 CVS 01140

    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.


    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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