IN THE MATTER OF:
Rowan County
THE ESTATE OF DOROTHY No. 03 E 460
KIGER WADE,
Deceased
Woodson, Sayers, Lawther, Short, Parrott & Walker, LLP, by
Donald D. Sayers, for appellee Herbert F. Wade.
Kluttz, Reamer, Hayes, Randolph & Adkins, L.L.P., by Nathan C.
Prater and Jennifer B. Flynn, for appellant William C. Moore,
Jr.
HUNTER, Judge.
William C. Moore, Jr., executor of the estate of Dorothy Kiger
Wade, appeals on behalf of the estate from an order entered 8
August 2005 allowing claims to proceed for an elective share and
year's allowance filed after the statutory deadlines had expired.
For the reasons stated herein, we dismiss this appeal as
interlocutory.
On 15 February 2003, Dorothy Kiger Wade (“decedent”) died in
North Carolina. The decedent was survived by her husband, Herbert
F. Wade (“Wade”), a resident of Florida, and two children from a
previous marriage, her son, William C. Moore, Jr., and a daughter,
Brenda Moore Johnson. The decedent's will provided fordistribution of her property in equal shares between her children
and specifically excluded Wade from her estate. The will was
admitted to probate in Rowan County, and Moore was appointed as
executor of the estate on 11 July 2003.
On 22 April 2004, Wade filed a “Claim for an Elective Share,
Alternatively, Notice of Election to Take Life Estate, And Year's
Allowance” with the Rowan County Clerk's office. Wade's claim was
denied by the clerk on 27 April 2004, as the deadline for a claim
for an elective share of the decedent's estate expired on 11
January 2004, and the deadline for the year's allowance had expired
on 15 February 2004.
Wade appealed the denial on 6 May 2004, but the executor was
not informed of the hearing date for the trial de novo by the
clerk's office. The matter was heard on 18 October 2004 before the
superior court, which reversed the clerk's denial and entered an
order allowing the claim for elective share and year's allowance to
proceed as if timely filed.
The executor filed a motion for relief on 31 March 2005 after
learning of the 18 October 2004 order, on the grounds that the lack
of notice of the proceedings to the executor constituted surprise.
A hearing was held on the executor's motion and the 18 October 2004
order was set aside on 25 April 2005.
On 9 May 2005, the executor filed an answer and motion to
dismiss Wade's claim for an elective share. A hearing was held on
16 June 2005 pursuant to a commission issued by the Administrative
Office of the Courts. On 8 August 2005, an order was entered whichreversed the 27 April 2004 order of the clerk, denied the
executor's motion to dismiss, and ordered that the claims for an
elective share and year's allowance be allowed to proceed as timely
filed. The executor appeals from this order.
Although neither party has addressed whether the trial
court's order was immediately appealable, as a threshold issue, we
must first consider whether the appeal is properly before this
Court. As we find that the order the executor appeals from is
interlocutory, we are precluded from reviewing the order.
An appeal from a denial of an elective share by the clerk may
be made to the superior court. N.C. Gen. Stat. § 30-3.4 (2005).
The superior court may review the findings of fact of the clerk, as
well as find facts or take other evidence to determine the appeal.
Id. When the trial court has not entered a final determination of
the appealed matter, as in this case, but has remanded to allow the
claims to proceed as though timely filed, the order is
interlocutory, as it does not dispose of plaintiff's claims.
“Interlocutory orders 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). “Generally, an order denying a motion to
dismiss is not appealable.” Thompson v. Norfolk S. Ry. Co., 140
N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (finding plaintiff's
appeal from a denial of a motion to dismiss a claim filed beyond
the statute of limitations interlocutory and not appealable). However, 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) (citation omitted). Although an
appeal from an interlocutory order which affects a plaintiff's
substantial rights is appealable, “'“[i]t 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, 140 N.C. App. at 121, 535 S.E.2d at 401
(citations omitted). The executor has failed to present any
grounds for acceptance of this appeal as a matter affecting a
substantial right and has not included a Rule 54(b) certification.
We are therefore precluded from reviewing this order and must
dismiss this appeal.
Dismissed.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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