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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 1 May 2007
F. NORWOOD THOMPSON,
No. 02 CVS 10677
C. THOMAS HENDRICKSON,
Appeal by plaintiff from order entered 19 April 2006 by Judge
Abraham Penn Jones in Wake County Superior Court. Heard in the
Court of Appeals 11 April 2007.
Shirley & Adams, P.L.L.C., by A. Graham Shirley; Lewis &
Roberts, P.L.L.C., by James A. Roberts, III; and Allen R. Tew,
P.A., by Allen R. Tew, for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Pressly M. Millen
and Sarah L. Buthe, for defendant-appellee.
F. Norwood Thompson (plaintiff) appeals from order entered
granting C. Thomas Hendrickson's (defendant) motion in limine
excluding plaintiff's expert's testimony and report on damages and
any evidence concerning the value of property arising from events
entirely in the future. We dismiss plaintiff's interlocutory
In 1992, plaintiff, defendant, and others founded an
engineering firm, Triangle Environmental, Inc. (Triangle). ByMay 1999, plaintiff and defendant each owned 50% of Triangle's
stock and served as directors of Triangle.
Plaintiff ran Triangle's day-to-day operations from its
inception in 1992 until approximately 1997 or 1998, when he,
defendant, and other key employees mutually agreed that defendant
would manage Triangle's day-to-day operations.
In May 1999, the parties discussed the possibility of one
buying out the other's interest in Triangle. The parties agreed
defendant would buy out plaintiff's interest in June 1999. The
transaction closed in August 1999. Defendant acquired plaintiff's
stock in Triangle, as well as his interest in real estate jointly
owned by the parties. In exchange, plaintiff received certain
considerations from defendant.
On 3 April 2000, Triangle and TRC Environmental, Inc. (TRC)
executed an asset purchase agreement in which TRC acquired the
majority of Triangle's assets in exchange for cash and stock.
Defendant received certain considerations as a result of this
On 9 August 2002, plaintiff sued defendant and alleged that
during the course of their buy out discussions, defendant failed to
disclose he had engaged in discussions with TRC, a potential
acquirer. Plaintiff asserted claims for: (1) breach of fiduciary
duty and constructive fraud; (2) fraud; (3) unfair and deceptive
practices under N.C. Gen. Stat. § 75-1.1; and (4) an accounting.
Plaintiff sought to offer at trial the testimony of Gary M.
Johnson (Johnson), an expert witness, and his report onplaintiff's damages. Johnson failed to value the amounts plaintiff
received and the value of the stock and property he sold as of the
date of the alleged fraud or breach of fiduciary duty. Johnson
purportedly valued the property as of future dates. Johnson
valued: (1) the TRC stock received by defendant as of 3 April
2000; (2) the TRC stock warrant as of December 2001, or
alternatively as of an one-year period between 18 May 2003 and 17
May 2004; (3) real property as of July 2002; and (4) Triangle's net
receivables and cash as of October 1999.
The matter was calendered for trial on 31 October 2005. On 28
October 2005, defendant moved in limine to exclude plaintiff from
presenting certain evidence on damages. On 19 April 2006, the
trial court granted defendant's motion and excluded Johnson's
testimony and report on damages and any evidence concerning the
value of property arising from events entirely in the future.
The trial court found its interlocutory order affected a
substantial right. Plaintiff appeals.
II. Interlocutory Order
Defendant has not challenged plaintiff's appeal as
interlocutory. However, It is well established in this
jurisdiction that if an appealing party has no right of appeal, an
appellate court on its own motion should dismiss the appeal even
though the question of appealability has not been raised by the
parties themselves. Bailey v. Gooding, 301 N.C. 205, 208, 270
S.E.2d 431, 433 (1980) (internal citations omitted); see Barrett v.
Hyldburg, 127 N.C. App. 95, 98, 487 S.E.2d 803, 805 (1997)(Although defendant has not challenged plaintiff's appeal as
premature, it is our responsibility to address the issue prior to
consideration of the merits of plaintiff's appeal. (internal
The trial court's order states that granting defendant's
motion in limine affected plaintiff's substantial rights. The
trial court stated:
This Order affects a substantial right of the
Plaintiff and this Court is of the opinion
that absent immediate appellate review such
substantial right will be lost, prejudiced, or
inadequately protected if Plaintiff is
required to proceed to trial without an expert
witness on the subject of damages. Therefore,
this Court respectfully requests that the
Court of Appeals review this Order on an
interlocutory basis so that the parties can
proceed to trial using the appropriate measure
of damages and taking into account the proper
evidence under that measure of damages.
Interlocutory appeals 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 to settle and determine the
entire controversy.' Sharpe v. Worland, 351 N.C. 159, 161, 522
S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71,
73, 511 S.E.2d 2, 4 (1999)); accord Veazey v. City of Durham, 231
N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). [A] trial court's
ruling on a motion in limine is an interlocutory ruling[.]
Barrett, 127 N.C. App. at 98, 487 S.E.2d at 805. Plaintiff's
appeal is clearly interlocutory.
Our Supreme Court has stated:
Generally, a party cannot immediately appeal
from an interlocutory order unless failure togrant immediate review would affect a
substantial right pursuant to N.C.G.S.
sections 1-277 and 7A-27(d).
A party may appeal an interlocutory order
under two circumstances. First, the trial
court may certify [pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 54(b) (2005)] that there is no
just reason to delay the appeal after it
enters a final judgment as to fewer than all
of the claims or parties in an action.
Second, a party may appeal an interlocutory
order that affects some substantial right
claimed by the appellant and will work an
injury to him if not corrected before an
appeal from the final judgment.
Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006)
(internal citations and quotations omitted). The trial court could
not certify the matter for immediate appellate review pursuant to
N.C. Gen. Stat. § 1A-1, Rule 54(b) because the trial court did not
enter a final judgment as to fewer than all of the claims or
parties in [the] action. Id. at 525, 631 S.E.2d at 119.
The issue before us is whether the trial court's order
affects some substantial right claimed by the appellant and will
work an injury to him if not corrected before an appeal from the
final judgment. Id. Plaintiff failed to state in his brief the
grounds for appellate review of an interlocutory appeal or discuss
the substantial rights that will be affected if the trial court's
order is not reviewed at this time.
This Court addressed similar circumstances in Johnson v.
Lucas, 168 N.C. App. 515, 608 S.E.2d 336, aff'd, 360 N.C. 53, 619
S.E.2d 502 (2005). In Johnson, this Court dismissed the
appellant's appeal, even though neither party had raised the
interlocutory nature of the appeal in its briefs. 168 N.C. App. at518-19, 608 S.E.2d at 338. The appellant failed to comply with
N.C.R. App. P. 28(b)(4) by not address[ing] what substantial right
might be lost if this appeal does not lie and to meet its burden
to show why the appeal affects a substantial right. Id. at 518,
608 S.E.2d at 338.
Here, plaintiff failed to state in his brief any grounds for
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 and argument to
support appellate review on the ground that
the challenged order affects a substantial
Id. (emphasis supplied) (quoting N.C.R. App. P. 28(b)(4)).
Plaintiff failed to include any statement of grounds for
appellate review and to include 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) (2007). As
in Johnson, we could dismiss the appeal based solely on
[plaintiff's] failure to comply with this requirement of the
Rules. Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338.
Plaintiff failed to meet his burden to show what substantial
rights would be affected if his appeal is not reviewed at this
time. Plaintiff's brief, like the appellant's brief in Johnson,
contains no discussion of any substantial right that will be
affected if we do not review this order at this time. 168 N.C.
App. at 519, 608 S.E.2d at 338. As this Court stated in Johnson: [The appellant] has failed to carry the burden
of showing why the appeal affects a
substantial right. It 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[.] Where the
appellant fails to carry the burden of making
such a showing to the court, the appeal will
168 N.C. App. at 518, 608 S.E.2d at 338 (internal quotation and
Plaintiff's brief contains no statement of the grounds for
appellate review of an interlocutory order. Plaintiff failed to
comply with N.C.R. App. P. 28(b)(4). Id
. at 519, 608 S.E.2d at
338. Plaintiff's brief contains no discussion of any substantial
right that will be affected if we do not review this order at this
. Plaintiff has failed to carry the burden of showing
why the appeal affects a substantial right. Id
. at 518, 608
S.E.2d at 338. Plaintiff's interlocutory appeal is dismissed.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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