Appeal by plaintiff and defendants from orders entered 9
December 2005 and 12 December 2005 by Judge Abraham Penn Jones in
Wake County Superior Court. Heard in the Court of Appeals 7
Womble Carlyle Sandridge & Rice, PLLC, by John C. Cooke and
Elizabeth T. Smith, for plaintiff.
Vining & Associates, PLLC, by Steven J. Vining, for
Defendants Susan Marie Bristol and John J. Santilli appeal
from an order granting partial summary judgment to plaintiff
Shirley Thomas Currin on the parties' cross-motions for summary
judgment and an order denying defendants' motion for
reconsideration. Plaintiff has filed notice of cross appeal,
although he contends that defendants' appeal is an improper
interlocutory appeal. We agree with plaintiff. Because this
appeal is interlocutory and because defendants have failed toidentify a "substantial right" that will be lost absent immediate
review, we dismiss the appeal.
Plaintiff and defendants were partners in a veterinary
practice known as Mayfair Animal Hospital, LLP. On 1 January 1999,
the partners entered into a written partnership agreement. Among
other matters, the agreement governed the withdrawal of partners
and the valuation of the withdrawing partner's interest in the
business. Under section 15 of the partnership agreement, a
withdrawing partner was entitled to receive compensation from the
remaining partners "[i]n the event that [the] partner shall give
notice of his or her intent to withdraw, and the remaining partners
elect to purchase the interest of the withdrawing partner."
Sometime in the spring of 2004, plaintiff announced his intent
to withdraw from the partnership effective 1 October 2004. In May
2005, plaintiff filed this action against his former partners,
alleging that he had not received the compensation due under the
partnership agreement for his interest in the business. Plaintiff
sought (1) damages for breach of the partnership agreement, (2) an
accounting of the partnership's funds, and (3) a declaratory
judgment setting forth defendants' fiduciary obligations to
In their answer, defendants denied any breach of the
agreement, alleging that "they ha[d] repeatedly advised [p]laintiff
that they would not exercise their option to purchase his interest
in the partnership, as is their right under the partnershipagreement." Defendants also asserted a counterclaim seeking a
declaration that they had the right to unilaterally dissolve the
Following cross-motions for summary judgment, the superior
court entered an order on 9 December 2005 granting summary judgment
to plaintiff on his first claim for relief for breach of contract.
The court concluded that "Defendants by their actions, elected to
purchase Plaintiff's partnership interest" and that "[t]heir
subsequent refusal to pay for that interest is a breach of the
partnership agreement." With respect to plaintiff's breach of
contract damages, the trial court held that the value of
plaintiff's interest should be calculated, under the agreement,
based on the business valuation relied upon by plaintiff rather
than the appraisal submitted by defendants. The court, however,
deferred making a final determination of damages because it lacked
necessary information regarding the applicable rate of interest.
The trial court also addressed defendants' counterclaim,
declaring that the partnership could not be dissolved without
plaintiff's consent since he had not yet been paid for his
partnership interest. The court did not, however, specifically
address plaintiff's second and third claims for relief.
Acknowledging that its resolution of the case was not final, the
court concluded its 9 December 2005 order with the following
directive to the parties: "The Court further directs that such
further proceedings as are just and proper be undertaken for the
prompt resolution of the remaining claims of the parties and entryof final judgment." On 12 December 2005, the trial court entered
an order denying defendants' motion for reconsideration.
Defendants appealed from the two orders. Plaintiff
subsequently filed a notice of cross appeal, but stated in that
notice: "Plaintiff believes that the Defendants' Notice of Appeal
is without legal force or effect and should be dismissed as an
appeal of an interlocutory order which does not affect a
Because the trial court's partial summary judgment order and
its denial of the motion for reconsideration did not fully resolve
all of plaintiff's claims against defendants and left undetermined
the amount of damages owed to plaintiff, this order is
interlocutory. See Veazey v. City of Durham
, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950) ("An interlocutory order is one made during
the pendency of an action, which does not dispose of the case, but
leaves it for further action by the trial court in order to settle
and determine the entire controversy."); Steadman v. Steadman
N.C. App. 713, 714, 559 S.E.2d 291, 292 (2002) (where partial
summary judgment order in plaintiff's favor postponed for later
decision the amount of damages and attorneys' fees to be awarded,
such order was interlocutory). Generally, there is no right to
appeal from an interlocutory order unless (1) the trial court made
the required certification under Rule 54 of the Rules of Civil
Procedure, or (2) the order affects a substantial right that would
be lost without immediate review. Eckard v. Smith
, 166 N.C. App.312, 316, 603 S.E.2d 134, 137-38 (2004), disc. review denied
N.C. 321, 611 S.E.2d 410, aff'd per curiam
, 360 N.C. 51, 619 S.E.2d
There has been no certification under Rule 54 in this case.
Indeed, the trial court's order acknowledged that "further
proceedings" would be necessary "for the prompt resolution of the
remaining claims of the parties and entry of final judgment." The
appeal is, therefore, only proper if the partial summary judgment
order affects a substantial right that would be lost without
The appellant bears the burden of establishing the existence
of a substantial right. Embler v. Embler
, 143 N.C. App. 162, 165,
545 S.E.2d 259, 262 (2001). To meet this burden, he must make a
two-pronged showing: "First, the right itself must be substantial.
Second, the deprivation of that substantial right must potentially
work injury if not corrected before appeal from a final judgment."
Perry v. N.C. Dep't of Corr.
, 176 N.C. App. 123, 129, 625 S.E.2d
790, 794 (2006) (internal citation omitted).
Defendants first contend that "these orders affect the
substantial rights of Defendants to have all matters resolved by
the same trier of fact." This one-sentence assertion is
unsupported by factual elaboration or citation to authority.
N.C.R. App. P. 28(b)(4), however, requires that the statement of
grounds for appellate review "contain sufficient facts and argument
to support appellate review on the ground that the challenged order
affects a substantial right." As "[i]t is not the duty of thisCourt to construct arguments for or find support for appellant's
right to appeal from an interlocutory order," Jeffreys v. Raleigh
Oaks Joint Venture
, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994), we reject this unsupported assertion as a basis for
permitting this interlocutory appeal.
Next, defendants argue: "[B]ecause the Trial Court clearly
violated the scope of its authority under Rule 56 by acting as the
trier of fact and by electing between differing conclusions from
the undisputed facts, these orders affected the substantial rights
of Defendants to have the proper trier of fact determine the issues
in a lawsuit." According to defendants, the orders violated
defendants' "right to have this matter heard by a jury, which
affects their substantial rights and is immediately appealable."
Defendants have not, however, explained why any error could not be
fully addressed following entry of final judgment.
The cases upon which defendants rely do not involve errors in
entering summary judgment, but rather were appeals from orders
denying a specific request for a jury trial. See Dep't of Transp.
, 116 N.C. App. 655, 656, 449 S.E.2d 11, 12 (1994) ("we
note that while the order defendant appeals from is interlocutory,
since the trial court denied defendant's request for a jury trial
the order affects a substantial right and is, therefore,
immediately appealable"); Dick Parker Ford, Inc. v. Bradshaw
N.C. App. 529, 531, 402 S.E.2d 878, 880 (1991) (holding that denial
of motion for jury trial "affects a substantial right"). In this
case, the dispute is not over whether defendants are entitled to ajury trial as to claims surviving summary judgment, but rather
whether the trial court properly entered partial summary judgment.
If we were to accept defendants' argument that a substantial
right arises whenever a trial court misapplies Rule 56, we would be
authorizing interlocutory appeals from all partial summary judgment
orders. This we cannot do. See Liggett Group, Inc. v. Sunas
N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993) ("A grant of partial
summary judgment, because it does not completely dispose of the
case, is an interlocutory order from which there is ordinarily no
right of appeal.").
Finally, defendants contend that "the substantial procedural
irregularities in the manner in which this order was issued also
affect the substantial rights of Defendants." Defendants, in
violation of N.C.R. App. P. 28(b)(4), again cite no authority to
support this contention. Further, they do not identify the
specific "substantial right" at stake and make no attempt to show
how they would be injured if required to wait until a final
judgment to appeal on these grounds. They have, therefore, met
neither prong of the "substantial right" analysis.
In sum, we conclude that defendants have not demonstrated the
existence of any substantial right that would be lost without
immediate review. Accordingly, we dismiss the appeal.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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