Appeal by plaintiffs from an order entered 8 December 2005 by
Judge Steven J. Bryant in Jackson County District Court. Heard in
the Court of Appeals 7 February 2007.
Patrick U. Smathers and Gina L. Norwood for plaintiff-
appellants.
Ridenour, Lay & Earwood, PLLC, by Eric Ridenour, for
defendant-appellees.
BRYANT, Judge.
Janice Price and her husband Anthony Price (plaintiffs) appeal
from an order entered 8 December 2005 granting partial summary
judgment in favor of Chestnut Ridge Property Owners' Association
Company, Inc., (defendant). For the reasons below, we dismiss this
appeal as interlocutory.
Facts and Procedural History
On 2 July 2004, plaintiffs commenced this action by filing a
complaint for damages caused by water flow across plaintiffs'
property allegedly due to improper maintenance of roads andculverts by defendant. Plaintiffs also sought a declaratory
judgment regarding association dues owed to defendant by
plaintiffs. On 26 August 2004, defendant moved to dismiss
plaintiffs' action and filed an answer and counterclaim for unpaid
membership fees by plaintiffs. Defendant subsequently filed a
motion for summary judgment on 11 May 2005.
On 8 December 2005 the trial court entered an order granting
partial summary judgment in defendant's favor on all of plaintiffs'
claims. The trial court's order also granted summary judgment in
favor of defendant “for failure of Plaintiffs to pay membership
fees due the Defendant in an amount to be determined at trial.”
Plaintiffs appeal.
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The dispositive issue before this Court is whether this appeal
is from an interlocutory order that does not affect a substantial
right of plaintiffs. 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) (emphasis added).
Here, the trial court's order, in addition to granting summary
judgment on all plaintiffs' claims, held that the issue of damages
pursuant to defendant's counterclaim was to be determined at a
later trial. Because the issue of damages remains to be resolved,
plaintiffs' appeal from the trial court's order granting partial
summary judgment is 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).
The North Carolina Rules of Appellate Procedure also mandate that,
“[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). Further,
“[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 v. Norfolk S. Ry.
Co., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (citations
and quotation marks omitted). “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,
aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502
(2005).
As there is no Rule 54(b) certification in the record before
this Court, plaintiffs are entitled to pursue this appeal only if
the order deprived them of a substantial right that would be lostif we dismissed their appeal. Plaintiffs, however, do not address
any substantial right they might lose if this appeal were
dismissed; plaintiffs instead assert they are appealing from a
“summary judgment order resolving all of the Plaintiff's claims
[which] is a final judgment[.]” Thus, we must hold that this
appeal is from an interlocutory order which does not affect a
substantial right; accordingly, this appeal is dismissed.
Dismissed.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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