Hanna v. Wright , 253 N.C. App. 413 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1134
Filed: 16 May 2017
Currituck County, No. 16 CVD 44
STEPHEN HANNA, Plaintiff,
v.
STEPHEN SIDNEY WRIGHT, Defendant.
Appeal by defendant from order of default judgment and preliminary
injunction, and an order setting the cash bond to stay execution of the judgment and
preliminary injunction, entered 14 June 2016 by Judge Amber Davis in Currituck
County District Court. Heard in the Court of Appeals 19 April 2017.
Brett Alan Lewis, for plaintiff-appellee.
Phillip H. Hayes, for defendant-appellant.
MURPHY, Judge.
Stephen Sidney Wright (“Defendant”) appeals from the trial court’s order of
default judgment and preliminary injunction, and order setting the cash bond to stay
execution of the judgment and preliminary injunction. After careful review, we
dismiss Defendant’s appeal as interlocutory.
Background
In March 2013, Plaintiff contracted to provide Defendant a 2006 MTL20 Track
Loader (“Track Loader”). After the contract was formed, Defendant took possession
HANNA V. WRIGHT
Opinion of the Court
of the Track Loader in March 2013. On 16 February 2016, Plaintiff filed a civil
summons and complaint in Currituck County District Court against Defendant
alleging breach of this contract, including a request for injunctive relief. Defendant
was served with the civil summons and complaint on 22 February 2016. On 30 March
2016, Plaintiff moved for entry of default, which was granted by the Currituck County
Clerk of Superior Court. On 25 April 2016, Plaintiff filed a motion for default
judgment. On 9 June 2016, Defendant through counsel filed a motion to set aside
entry of default and default judgment, and a proposed answer. That same day, the
trial court granted the default judgment and preliminary injunction. The trial court
decreed that Plaintiff was entitled to take possession of the Track Loader. The trial
court further ordered that Plaintiff was “entitled to a money judgment for rent-money
owed upon future motion in the cause for damages[.]” The trial court entered the
order on 14 June 2016. Defendant appealed from this order on 14 July 2016. The
amount of the money judgment to be entered against Defendant has not yet been
determined.
Analysis
At the outset, we note that the present appeal is interlocutory because the
amount of the money judgement to be entered has not yet been determined. Heavner
v. Heavner, 73 N.C. App. 331, 332, 326 S.E.2d 78, 80, disc. review denied, 313 N.C.
601, 330 S.E.2d 610 (1985) (explaining that an appeal is interlocutory if it “directs
-2-
HANNA V. WRIGHT
Opinion of the Court
some further proceeding preliminary to the final decree”). Therefore, we must review
whether we have jurisdiction over this appeal because “whether an appeal is
interlocutory presents a jurisdictional issue, and this Court has an obligation to
address the issue sua sponte.” Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392,
651 S.E.2d 261, 263 (2007) (citation, internal quotation marks, and brackets omitted).
“Generally, there is no right of immediate appeal from an interlocutory order.”
Feltman v. City of Wilson, 238 N.C. App. 246, 250, 767 S.E.2d 615, 618 (2014) (citation
omitted). For an interlocutory appeal to be heard, the appellant must establish (1)
that the trial court's order certified the case for appeal pursuant to N.C. R. Civ. P.
54(b); or (2) the order deprived the appellant of “a substantial right that will be lost
absent review before final disposition of the case.” Bessemer City Express, Inc. v. City
of Kings Mountain, 155 N.C. App. 637, 639, 573 S.E.2d 712, 714 (2002) (citing
N.C.G.S. §§ 1-277(a) and 7A-27(d)(1) (2001)). Here, Defendant admits his appeal is
interlocutory, but argues that we may hear this interlocutory appeal because the
order affects a substantial right.1 Specifically, he argues that the right of possession
of the Track Loader, for which he claims to have made partial payment, as a means
of earning a living “will be irreparably prejudiced if not reviewed before entry of the
final money judgment.” We disagree.
1The trial court did not certify its order for immediate appeal pursuant to Rule 54(b) of the
North Carolina Rules of Civil Procedure.
-3-
HANNA V. WRIGHT
Opinion of the Court
“Although our courts have recognized the inability to practice one’s livelihood
and the deprivation of a significant property interest to be substantial rights,” we
have not recognized that an order that does not prevent the business as a whole from
operating affects a substantial right. Bessemer City Express, Inc., 155 N.C. App at
640, 573 S.E.2d at 714. Here, Defendant did not show how his business would be
kept from operating as a whole as a result of the appealed order. Although he alleges
that the loss of the Track Loader would irreparably prejudice him, he does not allege,
nor does the record show, how the mere loss of the possession of the Track Loader
would cause such prejudice. Nor does he argue that losing possession of the Track
Loader would prevent Defendant from practicing his livelihood as a whole. As it was
Defendant’s burden to establish that a substantial right would be lost absent review
before final disposition of the case, we cannot simply read the extent to which his
business will be affected into the record. Jeffreys v. Raleigh Oaks Joint Venture, 115
N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994) (“[I]t is the appellant's burden to
present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]”)
The amount of the money judgment to be entered against Defendant remains
outstanding. Defendant’s argument on appeal does not evince sufficient grounds for
an interlocutory appeal. Thus, we have no jurisdiction to hear this matter at this
time.
Conclusion
-4-
HANNA V. WRIGHT
Opinion of the Court
For the reasons stated above, Defendant’s interlocutory appeal is dismissed.
DISMISSED.
Judges CALABRIA and DIETZ concur.
-5-