Brown v. Brown , 77 N.C. App. 206 ( 1985 )

334 S.E.2d 506 (1985)

Joann BROWN, Plaintiff,
v.
D.T. BROWN, Jr. Original Defendant, and
Paul G. Brown and Gladys Brown, Additional Defendants.

No. 8524DC58.

Court of Appeals of North Carolina.

October 1, 1985.

McElwee, McElwee, Cannon & Warden by William H. McElwee, III and William C. Warden, Jr., North Wilkesboro, for plaintiff-appellant.

Howell & Peterson by Allen J. Peterson, Burnsville, for defendant-appellee.

ARNOLD, Judge.

Plaintiff contends that the trial court erred by 1) refusing to admit her affidavit into evidence at the summary judgment hearing, 2) canceling her notices of lis pendens, 3) denying her Motion for Production of Documents, and 4) granting partial summary judgment for Paul G. Brown. Appellee has made a motion to dismiss plaintiff's appeal as premature and frivolous. We deal first with this issue.

Basically, the right to appeal is available through two channels. 54(b) of the Rules of Civil Procedure allows appeal if there has been a final judgment as to all of the claims and parties, or if the specific action of the trial court from which appeal is taken is final and the trial judge expressly determines that there is no just reason for delaying the appeal. Leasing Corp. v. Myers, 46 N.C.App. 162, 265 S.E.2d 240 (1980).

In examining plaintiff's right to an appeal by way of Rule 54(b), we note that the orders in the present case are interlocutory in nature since further action is required by the trial court to determine the entire controversy. These orders are not final as to all claims or parties. See Waters v. Personnel, Inc., 294 N.C. 200, 240 S.E.2d 338 (1978). See also Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980). Plaintiff argues that the present appeal is proper under Rule 54(b) because the specific action by the trial court is final as to all land titled in the names of Gladys Brown, Paul G. Brown, and Paul G. Brown and third parties. Assuming arguendo that plaintiff's contention has merit, her appeal is still untimely because the trial court did not certify the action for appeal by finding that there was "no just reason for delay." Rule 54(b) expressly requires that this determination be stated in the judgment itself. Leasing Corp., 46 N.C. App. at 171, 265 S.E.2d at 247. In the case sub judice, the trial judge made no such declaration in the judgment. Through Rule 54(b), no appeal lies.

The second channel to an appeal is by way of G.S. 1-277 or G.S. 7A-27. An appeal will be permitted under these statutes if a substantial right would be affected by not allowing appeal before final judgment. See Blackwelder v. Dept. of Human Resources, 60 N.C.App. 331, 299 S.E.2d 777 (1983). Since Rule 54(b) affords plaintiff no appeal, a substantial right must be affected in order for plaintiff to avoid a ruling that her appeal is premature.

Courts recently have taken a restricted view of the substantial right exception. See Blackwelder at 334, 299 S.E.2d at 780. A right is substantial only when it "will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment." Blackwelder at 335, 299 S.E.2d at 780 (emphasis added). Plaintiff fails to show a right which will clearly be lost or affected if immediate review is denied.

Plaintiff contends that the trial court's ruling on her motion to produce documents and the court's refusal to admit plaintiff's affidavit into evidence warrant immediate review. We hold that they are not substantial rights. Protection of these rights is adequately supplied by exceptions which may then be assigned as error on later appeal. See Terry's Floor Fashions v. Murray, 61 N.C.App. 569, 300 S.E.2d 888 (1983).

Plaintiff also contends that her alleged right to property titled in the names of Paul G. Brown, his ex-wife, and Paul G. Brown and third parties, amounts to a substantial right which would be lost if not reviewed before final judgment. Such is not the case. There is the chance, as with all property, of waste or encumbrance. This, however, is not enough to establish the loss of a substantial right. The requirement is not one of possibilities but one of definite loss. In the case sub judice, there is no clear loss of a substantial right which would be caused by rejection of this early appeal.

It is true that if the property in question is found later on appeal to be subject to plaintiff's equitable distribution claim that this property must be added to the marital pie and a redivision of the marital property must occur. This point, however, is not determinative of the issue at hand. The avoidance of a rehearing is not a substantial right warranting immediate appeal. Blackwelder, 60 N.C.App. at 335, 299 S.E.2d at 780. There is no substantial right involved in the present case.

The rules concerning appeal are intended to "prevent fragmentary and premature appeals that unnecessarily delay the administration of justice...." Bailey, 301 N.C. at 209, 270 S.E.2d at 434. They are designed to allow the trial court to fully dispose of a case before an appeal can be heard. Id. There is no appeal available to plaintiff through either channel discussed above. We return this case to the trial court for determination of the entire controversy.

Appeal dismissed.

HEDRICK, C.J., and COZORT, J., concur.