Appeal by plaintiff from order entered 29 November 2005 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 19 March 2007.
The Kuhn Law Firm, PLLC, by Benjamin R. Kuhn, for plaintiff-
Shanklin & Nichols, LLP, by Kenneth A. Shanklin and Matthew A.
Nichols, for defendants-appellees.
Plaintiff Joseph R. Pawlik appeals from an order of the
superior court dismissing his claims against defendants Benedict
Fortunati and Denise Wurst. Because defendants' counterclaims are
still pending, and plaintiff has failed to demonstrate that this
interlocutory appeal is properly before the Court, we dismiss the
Plaintiff and defendants have been neighboring landowners in
Wilmington, North Carolina since 1993. According to plaintiff's
complaint, in February 2001, plaintiff spoke in opposition todefendants' request to paint their house "cobalt blue" at a hearing
before the City of Wilmington's Historic Preservation Commission.
Plaintiff alleges that defendants thereafter "subjected [him] to
intentional acts of harassment and intimidation," including the
construction of various barriers and a spite fence along the common
boundary line between their properties, the installation of flood
lights directed at his property, and verbal assaults.
On 25 April 2005, plaintiff filed suit against defendants in
New Hanover County Superior Court, asserting claims for private
nuisance and intentional and negligent infliction of emotional
distress. On 11 October 2005, defendants filed an answer, denying
the material allegations of plaintiff's complaint and asserting
various affirmative defenses and counterclaims, including claims
for malicious prosecution, abuse of process, invasion of privacy,
trespass, and nuisance. Defendants also sought dismissal of
plaintiff's complaint based on a failure to exhaust administrative
remedies, the statute of limitations, a failure to state a claim
for relief, and a failure to properly plead special damages.
On 29 November 2005, the trial court entered an order granting
defendants' motion to dismiss plaintiff's complaint. The trial
court did not rule on defendants' counterclaims. Plaintiff has
appealed the trial court's order dismissing his claims. Defendants
have moved to dismiss plaintiff's appeal, contending that because
defendants' counterclaims are still pending, plaintiff's appeal is
interlocutory and not properly before this Court.
An order is interlocutory if it is made during the pendency of
an action and does not dispose of the case, but rather requires
further action by the trial court in order to finally determine the
entire controversy. Cagle v. Teachy
, 111 N.C. App. 244, 247, 431
S.E.2d 801, 803 (1993). Thus, an order is interlocutory when it
dismisses the claims of one party while leaving the claims of
another pending. See Bob Timberlake Collection, Inc. v. Edwards
176 N.C. App. 33, 38, 626 S.E.2d 315, 320 (appeal of dismissal of
defendant's counterclaims was interlocutory when plaintiff's claims
had yet to be tried), disc. review denied
, 360 N.C. 531, 633 S.E.2d
674 (2006); J & B Slurry Seal Co. v. Mid-South Aviation, Inc.
N.C. App. 1, 4, 362 S.E.2d 812, 815 (1987) (summary judgment in
favor of defendants on plaintiff's claims did not adjudicate
defendants' counterclaims, and, therefore, plaintiff's appeal was
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 in part
, 359 N.C. 321, 611
S.E.2d 410, aff'd in part
, 360 N.C. 51, 619 S.E.2d 503 (2005). It
is the appellant's responsibility to explain to this Court the
basis of our jurisdiction to hear an interlocutory appeal. Specifically, Rule 28(b)(4) of the Rules of Appellate
Procedure requires that the appellant include in his brief "[a]
statement of grounds for appellate review." The rule provides
Such statement shall include citation of the
statute or statutes permitting appellate
review. When an appeal is based on Rule 54(b)
of the Rules of Civil Procedure, the statement
shall show that there has been a final
judgment as to one or more but fewer than all
of the claims or parties and that there has
been a certification by the trial court that
there is no just reason for delay. When an
appeal is interlocutory, the statement must
contain sufficient facts and argument to
support appellate review on the ground that
the challenged order affects a substantial
N.C.R. App. P. 28(b)(4). In violation of this rule, plaintiff's
brief failed to include the mandated statement.
Once defendants moved to dismiss his appeal, plaintiff filed
a motion to amend his brief to add a section regarding the grounds
for appellate review. The proposed new section states in its
entirety: "This case is appealed pursuant to N.C. Gen. Stat. §§ 1-
277(a) and 7A-27(d)(1), as the trial court's order deprives the
Plaintiff-Appellant of a substantial right which would be lost
absent immediate review." We note that this proposed amendment
still fails to comply with the requirement in the rule that "the
statement 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). Plaintiff has
pointed to no facts and has made no argument to support his
generalized assertion that his appeal involves a "substantialright." This appeal is, therefore, subject to dismissal based on
the failure to comply with N.C.R. App. P. 28(b)(4).
In his response to defendants' motion to dismiss the appeal,
plaintiff supplied the argument improperly omitted from his brief.
He contends that although defendants' counterclaims are still
pending, they involve the same facts and circumstances as
plaintiff's claims, and, therefore, he "is exposed to the
possibility of inconsistent verdicts and the court system is tasked
with hearing the same facts and circumstances in two separate
In Green v. Duke Power Co.
, 305 N.C. 603, 608, 290 S.E.2d 593,
596 (1982), our Supreme Court held that, although the desire to
avoid a trial generally does not involve a substantial right, the
prospect of undergoing two trials may affect a substantial right
"when the same issues are present in both trials, creating the
possibility that a party will be prejudiced by different juries in
separate trials rendering inconsistent verdicts on the same factual
issue." Based on this principle, this Court has concluded that a
substantial right is affected when the dismissed claims and the
claims that remain pending have "'overlapping factual issues.'"
Liggett Group Inc. v. Sunas
, 113 N.C. App. 19, 24, 437 S.E.2d 674,
677 (1993) (quoting Davidson v. Knauff Ins. Agency, Inc.
, 93 N.C.
App. 20, 26, 376 S.E.2d 488, 492, disc. review denied
, 324 N.C.
577, 381 S.E.2d 772 (1989)).
Although plaintiff asserts generally that his claims and
defendants' counterclaims involve overlapping factual issues, hemakes no real effort to specifically explain how a jury verdict on
defendants' counterclaims might be inconsistent with a jury verdict
on his own claims. He simply states in conclusory fashion that
defendant's counterclaims "raise the very issues and sets of facts"
that are "at the heart" of plaintiff's complaint, and are "part and
parcel" of defendants' "abuse" of plaintiff. He does not point to
specific allegations or claims for relief in his complaint that
overlap with those in defendants' counterclaims.
A review of plaintiff's complaint reveals that his causes of
action seek relief based upon defendants' conduct directed toward
plaintiff and his property, including the use of unattractive
barriers, construction of a spite fence, the directing of flood
lights at plaintiff's property, and verbal assaults and threats.
On the other hand, defendants' counterclaims seek relief for
plaintiff's conduct directed toward them and their property,
including invasion of their privacy through cameras focused on
their property, malicious prosecution and abuse of process,
trespass by plaintiff onto defendants' property, and nuisance. Our
review of the claims suggests that plaintiff and defendants could
each be liable for torts committed against the other. In other
words, whatever the outcome of defendants' counterclaims, there
would not necessarily be a threat of inconsistent verdicts if
plaintiff's claims were, after appeal, allowed to proceed.
Plaintiff provides no explanation otherwise. Compare Bob
, 176 N.C. App. at 38, 626 S.E.2d at 320
(concluding that, because defendant's allegations of fraud would beavailable defensively against plaintiff's claim and offensively as
separate claim by defendant, trial court's order dismissing
defendant's claims affected defendant's substantial rights).
We do not find plaintiff's conclusory statements pertaining to
the "sets of facts" underlying the parties' pleadings sufficient to
support our review in the absence of a specific discussion of the
parties' respective claims and the pertinent underlying factual
contentions. See Murphy v. Coastal Physician Group, Inc.
, 139 N.C.
App. 290, 295, 533 S.E.2d 817, 820 (2000) (holding that defendant's
reference to "issues arising out of [plaintiff's] contract" as an
overlapping factual issue was not sufficient to support
interlocutory appellate review because it merely identified the
source of the issues rather than actual overlapping issue). As
this Court has explained, "[i]t is not the duty of this Court to
construct arguments for or find support for appellant's right to
appeal from an interlocutory order." Jeffreys v. Raleigh Oaks
, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
We, therefore, dismiss plaintiff's appeal as interlocutory.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).
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