v. Wake County
No. 05 CVS 9881
EMMA B. McRAE BROWN SWIFT,
CHRYSTAL CHEREE BROWN-
THOMPSON, ERIC SOMMER,
ASSISTANCE LLC, TRIANGLE
PROPERTY GROUP LLC, and
BAY CAPITAL CORP.,
Stephen F. Wallace, for plaintiff-appellant.
Chrystal Cheree Brown-Thompson and Emma Brown McRae Swift, pro se defendants-appellees. (See footnote 1)
Eric C. Sommer, pro se defendant-appellee.
As a general rule, interlocutory orders are not appealable unless the trial court has certified the order for immediate appeal, or the order affects a substantial right. (See footnote 2) Because we findthat neither exception applies to the instant case, we dismiss the plaintiff's appeal for lack of jurisdiction.
On 26 July 2005, Plaintiff Marti McMillan filed a complaint against Defendants Emma B. McRae Brown Swift, Chrystal Cheree Brown-Thompson, Eric Sommer, Triangle Community Assistance LLC (TCA), Triangle Property Group LLC (TPG), The Peck Law Firm P.A., Hawke & Associates Inc., Bay Capital Corporation, and B&J Mortgage Corp. I, seeking to recover damages allegedly sustained through the fraudulent or otherwise improper credit repair and foreclosure counseling services provided by Ms. Brown-Thompson and TCA, and financed or facilitated by the remaining defendants. Ms. Swift, Ms. Brown-Thompson, Mr. Sommer, TCA, and TPG answered the complaint on or about 26 September 2005, asserting a counterclaim against Ms. McMillan for breach of her foreclosure assistance and lease contracts.
On 1 May 2006, Ms. Swift and Mr. Sommer moved for summary judgment, and Ms. Brown-Thompson and TCA moved for partial summary as to two of Ms. McMillan's claims against them. The following day, Ms. McMillan filed a supplemented complaint, asserting additional claims against Ms. Swift, Ms. Brown-Thompson, Mr. Sommer, TCA, TPG, and Bay Capital for, inter alia, actual and constructive fraud, breach of contract, wrongful eviction, and violations of the Credit Repair Services Act, Retail Installment Sales Act, and Unfair and Deceptive Trade Practices Act. Althoughthe body of the supplemented complaint continued to identify Peck, Hawke, and B&J Mortgage as parties-defendant, Ms. McMillan did not assert claims against them, nor were they listed in the caption of the supplemented complaint.
On 4 May 2006, Ms. Brown-Thomspon and TCA amended their motion for partial summary judgment to seek an award of summary judgment as to all of Ms. McMillan's claims against them. Ms. Swift, Ms. Brown-Thompson, Mr. Sommer, and TCA filed their answer to the supplemented complaint on 1 June 2006, and included their counterclaim for breach of contracts.
After a hearing on 12 July 2006, the trial court granted summary judgment to Ms. Swift and Mr. Sommer in an order dated 1 August 2006, finding Ms. McMillan had failed to create a genuine issue of material fact regarding any of the claims asserted against [them]. The court also granted partial summary judgment to Ms. Brown-Thompson and TCA on Ms. McMillan's claims for wrongful eviction and violation of the Retail Installment Act, but denied their motion as to her remaining claims.
Ms. McMillan now appeals, arguing that the trial court erred by (I) denying a motion to continue when a motion to compel discovery was outstanding, and (II) denying a motion to strike and a motion for further proceedings when Defendants' brief was not timely served. Additionally, Ms. McMillan filed a reply brief specifically stating that her appeal is only from that portion of the order that applies to Ms. Brown and Mr. Sommer, not to the partial summary judgment granted to Ms. Brown-Thompson and TCA. Ms. McMillan asserts that the trial court's order left no other claims remaining against Ms. Swift and Mr. Sommer, such that it should be considered a final judgment, and she should have a right of appeal under N.C. Gen. Stat. § 7A-27(b). We disagree.
In her appellant's brief and reply brief filed pursuant to N.C. R. App. P. 28(h), Ms. McMillan contends - without citing any controlling legal authority - that the trial court's order is an appealable final judgment for purposes of N.C. Gen. Stat. § 7A- 27(b), inasmuch as it resolves all of her claims against Ms. Swift and Mr. Sommer. We find this assertion to be completely without merit. The distinction between a final judgment and an interlocutory order is well established:
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. Any order resolving fewer than all of the claims between the parties is interlocutory. Interlocutory orders are appealable before entry of a final judgment if (1) the trial court certifies there is no just reason to delay the appeal of a final judgment as to fewer than all of the claims or parties in an action or (2) the 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.
McCutchen v. McCutchen, 360 N.C. 280, 282, 624 S.E.2d 620, 622-23 (2006) (internal quotations and citations omitted); see also N.C. R. Civ. P. 54(b). Moreover, "[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[.] Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d336, 338 (quoting Thompson v. Norfolk & Southern Ry., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (internal citations and quotations omitted)), aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).
Here, the trial court's summary judgment order for Ms. Swift and Mr. Sommer is clearly interlocutory, leaving unresolved several of Ms. McMillan's claims against multiple defendants, as well as Ms. Swift's and Mr. Sommer's counterclaim against Ms. McMillan for breach of contracts. Because the trial court neither certified the order for immediate appeal, see N.C. R. Civ. P. 54(b), nor did Ms. McMillan make a proffer of a substantial right affected by this non-final order under N.C. Gen. Stat. § 7A-27(d)(1), we dismiss her appeal for lack of jurisdiction. Johnson, 168 N.C. App. at 518, 608 S.E.2d at 338.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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