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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 April 2007
LEDYARD W. ROSS,
No. 02 CVS 1386
LANDEX, INC., TERRA ALTA
DEVELOPMENT GROUP, L.L.C., WILLIAM
J. BURK, JAMES EDWARD BURRELL,
HERMAN D. TOMER, DALE E. GENTLE,
WILLIAM W. MEROW, JR., CONCORD
DEVELOPMENT GROUP, L.L.C., and
INTERSTATE COMBINED VENTURES, a
North Carolina Partnership,
Appeal by defendants from order entered 1 March 2006 by Judge
Clifton W. Everett, Jr., in Pitt County Superior Court. Heard in
the Court of Appeals 7 March 2007.
The Blount Law Firm, PA, by Rebecca C. Blount, and Marvin K.
Blount, III, for plaintiff-appellee.
Koehler & Cordes, PLLC, by David C. Cordes, for defendant-
appellant William Merow; and Garlitz & Williamson, PLLC, by F.
Lane Williamson, for defendant-appellant Dale Gentle.
Defendants (Dale Gentle and William Merow) appeal from the
denial of their motion to dismiss plaintiff's first amended
complaint. We dismiss as interlocutory.
The pertinent facts are summarized as follows: On 23 May 2002
plaintiff filed a complaint against defendants Landex, Inc., Terra
Alta Development Group, L.L.C., William J. Burk, James EdwardBurrell, and Herman D. Tomer. Plaintiff sought recovery based on
claims of breach of contract, fraud, constructive fraud,
conversion, unfair and deceptive trade practices, and violation of
Defendant Burk subsequently filed for bankruptcy. On 13
August 2003 Judge W. Russell Duke, Jr., entered an order noting the
possibility that plaintiff would obtain relief in the bankruptcy
proceedings, and directing that the case be removed from the
pending trial list, and . . . from the active docket . . . with
leave to any party to reinstitute the same by motion in the
Several months later plaintiff moved for permission to file an
amended complaint. The trial court granted his motion in an order
entered 10 November 2003. Plaintiff filed his first amended
complaint in November 2003. The amended complaint included new
factual allegations, and added defendants Dale E. Gentle, William
W. Merow, Jr., Concord Development Group, L.L.C., and Interstate
Combined Ventures. Defendants Merow and Gentle each filed answers,
and the parties engaged in discovery for more than eighteen months
following the filing of plaintiff's amended complaint.
On 8 April 2005 defendants Gentle and Merow filed a joint
motion to dismiss plaintiff's amended complaint, on the grounds
that it had been filed in violation of the 2003 order removing the
case from the active docket list. The trial court denied their
motion in an order entered 1 March 2006. From this order
defendants Gentle and Merow have appealed.
Defendants have appealed from a pre-trial order denying their
motion to dismiss plaintiff's amended complaint. We address the
interlocutory nature of this order.
An order is either interlocutory or the final determination
of the rights of the parties. N.C. Gen. Stat. § 1A-1, Rule 54(a)
(2005). A final judgment is one which disposes of the cause as to
all the parties, leaving nothing to be judicially determined
between them in the trial court. 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. Veazey v.
, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations
In the instant case, defendants appeal from an interlocutory
order. Generally, there is no right of immediate appeal from
interlocutory orders and judgments[.] Sharpe v. Worland
, 351 N.C.
159, 161, 522 S.E.2d 577, 578 (1999). However, interlocutory
orders are immediately appealable if delaying the appeal will
irreparably impair a substantial right of the party. Hudson-Cole
Dev. Corp. v. Beemer
, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311
It is well established that the appellant bears the burden of
showing to this Court that the appeal is proper. First, when an
appeal is interlocutory, the appellant must include in its
statement of grounds for appellate review sufficient facts andargument to support appellate review on the ground that the
challenged order affects a substantial right. N.C. R. App. P.,
Rule 28(b)(4). . . . 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
, 360 N.C. 53, 619 S.E.2d 502 (2005) (internal
quotation marks and citation omitted).
Defendants herein contend that the order is immediately
appealable on the grounds that it affects substantial rights.
However, defendants fail to identify any right at issue, or why
the unidentified right is substantial. Defendants also assert
that they are appealing from an [a]dverse ruling concerning
personal jurisdiction. This is inaccurate, as neither defendant
objected to the court's exercise of personal jurisdiction over
Plaintiff has not filed a motion for sanctions against the
appellants and/or their attorneys pursuant to N.C. R. App. P., Rule
34 for taking this interlocutory appeal, and we have elected not to
do so on our motion. We are hard-pressed to recall another
interlocutory appeal with less merit than that presented in this
matter. It is facially apparent that this appeal was not well
grounded in fact and warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing
law[.] Rule 34(a)(1). And it appears that this appeal was taken
for the purpose of causing unnecessary delay or needless increase
in the cost of litigation[.] Rule 34(a)(2). We conclude that defendants have failed to articulate any
basis for immediate review of the trial court's order, and that
their appeal must be
Panel Consisting of: Judges McCULLOUGH, BRYANT and LEVINSON.
Report per Rule 30(e).
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