KNC Techs., LLC v. Tutton ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-73
No. 277A21
Filed 17 June 2022
KNC TECHNOLOGIES, LLC
v.
ERIC TUTTON and i-TECH SECURITY AND NETWORK SOLUTIONS, LLC
Appeal pursuant to N.C.G.S. § 7A-27(a)(3) from an order and opinion on
plaintiff’s motion for partial summary judgment and defendants’ motion for summary
judgment entered on 8 April 2021 by Judge Gregory P. McGuire, Special Superior
Court Judge for Complex Business Cases, in Superior Court, Davidson County, after
the case was designated a mandatory complex business case by the Chief Justice
pursuant to N.C.G.S. § 7A-45.4(a). Heard in the Supreme Court on 9 May 2022.
Matthew W. Georgitis, Alexander L. Turner, and R. Matthew Van Sickle for
plaintiff-appellant.
D. Stuart Punger Jr. for defendant-appellees.
BARRINGER, Justice.
¶1 In this matter, the appellant KNC Technologies, LLC noted an appeal as of
right of an interlocutory order but has failed to show that the order affects a
substantial right or otherwise satisfies the requirements for an appeal as of right to
this Court from an interlocutory order of a business court judge. See N.C.G.S. § 7A-
27(a)(3) (2021). Accordingly, we dismiss the appeal.
KNC TECHS., LLC V. TUTTON
2022-NCSC-73
Opinion of the Court
¶2 Pursuant to N.C.G.S. § 7A-27(a)(3), an appeal of right lies to this Court from
an interlocutory order of a business court judge only if it “[a]ffects a substantial right,”
“[i]n effect determines the action and prevents a judgment from which an appeal
might be taken,” “[d]iscontinues the action,” or “[g]rants or refuses a new trial.”
N.C.G.S. § 7A-27(a)(3). “It is the appellant’s burden to present appropriate grounds
for . . . 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[.]”
Hanesbrands Inc. v. Fowler, 369 N.C. 216, 218 (2016) (alterations in original) (quoting
Johnson v. Lucas, 168 N.C. App. 515, 518, aff’d per curiam, 360 N.C. 53 (2005)).
Additionally, “the North Carolina Rules of Appellate Procedure require that the
appellant’s brief contain a ‘statement of the grounds for appellate review,’ which must
allege ‘sufficient facts and argument to support appellate review on the ground that
the challenged order affects a substantial right.’ ” Id. at 219 (quoting N.C. R. App. P.
28(b)(4)).
¶3 The appellant must present more than a bare assertion that the order affects
a substantial right, in effect determines the action and prevents a judgment from
which an appeal might be taken, discontinues the action, or grants or refuses a new
trial. See id.; see also N.C. R. App. P. 28(b)(4). Appellants must demonstrate why the
order has the claimed effect under N.C.G.S. § 7A-27(a)(3). See Hanesbrands, 369 N.C.
at 219; see also N.C. R. App. P. 28(b)(4). If an appellant fails to carry its burden to
KNC TECHS., LLC V. TUTTON
2022-NCSC-73
Opinion of the Court
present appropriate grounds for an interlocutory appeal as of right, this Court will on
its own motion dismiss the appeal. Waters v. Qualified Pers., Inc., 294 N.C. 200, 201
(1978) (“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.” (footnote omitted)); cf. Hanesbrands, 369 N.C.
at 218 (“An appeal from an interlocutory order will be dismissed as fragmentary and
premature unless the order affects some substantial right and will work injury to
appellant if not corrected before appeal from final judgment.” (cleaned up)).
¶4 KNC Technologies acknowledges that it has appealed an interlocutory order.
However, KNC Technologies’ basis for this Court’s review is limited to two
statements: (1) that the interlocutory order affects a substantial right because the
trial court “erroneously denied” its partial summary judgment motion on various
claims and (2) that the order in effect determines the action and prevents a judgment
from which an appeal might be taken because “[t]he denial of summary judgment
prevents entry of a final order on those claims from which [KNC Technologies] might
appeal.” This is a bare assertion, which is clearly not sufficient to satisfy an
appellant’s burden to present appropriate grounds for an interlocutory appeal as of
right to this Court. Therefore, we dismiss KNC Technologies’ appeal.
DISMISSED.