v. Buncombe County
No. 05 CVD 842
BETTY FORD SAMS,
Carol B. Andres for plaintiff-appellee.
Mary Elizabeth Arrowood for defendant-appellant.
MARTIN, Chief Judge.
Chris Sams (plaintiff) and Robert H. Sams, Jr. (defendant)
were married to one another in May 1995. On 16 November 2000,
plaintiff filed an action against defendant in Buncombe County
District Court, Case No. 00 CVD 5943, seeking, inter alia, an
equitable distribution of marital property. Defendant filed an
answer and counterclaim seeking, inter alia, an equitable
distribution of marital property. No action for divorce was ever
filed in the case and on 27 August 2001, the parties filed a joint
voluntary dismissal of all claims pursuant to Rule 41(a) of the
North Carolina Rules of Civil Procedure. More than three years later, on 24 February 2005, plaintiff
filed an action against defendant seeking a divorce and alleging
claims for child custody and equitable distribution of marital
property. The parties were divorced on 7 June 2005. Thereafter,
on 8 August 2005, defendant filed a motion to dismiss plaintiff's
equitable distribution claim. In his motion, defendant argued the
equitable distribution claim should be dismissed because plaintiff
had voluntarily dismissed her first equitable distribution claim in
Buncombe County District Court Case No. 00 CVD 5943, and plaintiff
failed to file her second equitable distribution claim within one
year after the voluntary dismissal of her first equitable
By order entered 17 August 2005, the trial court denied defendant's motion to dismiss. Although a copy of the divorce judgment is not included in the record, the trial court expressly stated in its order denying defendant's motion to dismiss that plaintiff's equitable distribution and custody claims were severed from the judgment of divorce and reserved for hearing on a later date.
The issue dispositive of this appeal is whether defendant's appeal should be dismissed as interlocutory. Here, defendant is appealing from the trial court's denial of his motion to dismiss plaintiff's claim for equitable distribution. Ordinarily, a trial court's denial of a motion to dismiss is an interlocutory order from which there is no right of appeal. Bolton Corp. v. T. A. Loving Co., 317 N.C. 623, 629, 347 S.E.2d 369, 373 (1986). Thereare, however, two means by which an interlocutory order may be immediately appealed: (1) the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) (2006); and (2) the order 'affects a substantial right of the appellant that would be lost without immediate review.' McIntyre v. McIntyre, ___ N.C. App. ___, ___, 623 S.E.2d 828, 831 (2006) (citation omitted).
Here, the trial court did not certify its order pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. As such, this order is reviewable only if it affects a substantial right. The question of whether an interlocutory appeal affects a substantial right must be considered in light of the particular facts of that case and the procedural context in which the order from which appeal is sought was entered. Sharpe v. Worland, 351 N.C. 159, 162-63, 522 S.E.2d 577, 579 (1999) (citations omitted), disc. review denied, 352 N.C. 150, 544 S.E.2d 228 (2000) ; see also Embler v. Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001) (Whether an interlocutory appeal affects a substantial right is determined on a case by case basis.) Our courts generally have taken a restrictive view of the substantial right exception[,] and [t]he burden is on the appellant to establish that a substantial right will be affected unless he is allowed immediate appeal from an interlocutory order. Id. (citations omitted). In addition, when an appeal is interlocutory, the appellant must include in his statement of grounds for appellate review sufficient facts and argument to support appellate reviewon the ground that the challenged order affects a substantial right. N.C.R. App. P. 28(b)(4).
Here, defendant's brief to this Court does not contain a statement of the grounds for appellate review as required by Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure. Indeed, the only reference defendant makes as to whether this appeal affects a substantial right is in the conclusion of his appellate brief. There, defendant summarily states he seeks an order finding that this matter affects a substantial right of [d]efendant and allowing this appeal to be heard at this time to avoid the necessity of a full equitable distribution trial . . . . We conclude this conclusory statement does not satisfy defendant's burden of showing this appeal affects a substantial right. Further, this Court has consistently stated that avoidance of a rehearing or trial is not a substantial right entitling a party to an immediate appeal. McIntyre, ___ N.C. App. at ___, 623 S.E.2d at 832 (citation omitted); Allen v. Stone, 161 N.C. App. 519, 522, 588 S.E.2d 495, 497 (2003). Because defendant has failed to meet his burden of identifying a substantial right which would be affected were this Court to decline review of the instant appeal, the appeal must be dismissed as interlocutory. McIntyre, ___ N.C. App. at ___, 623 S.E.2d at 832.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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