Estate of Mills v. Estate of Mills ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-830
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
ESTATE OF RUBY SPAINHOUR MILLS, by
and through WILLIAM L. MILLS, III,
EXECUTOR,
Plaintiff,
vs. Cabarrus County
No. 12 CVS 471
ESTATE OF HAROLD LUTHER MILLS, by
and through E. THOMAS HARTSELL,
EXECUTOR,
Defendant.
Appeal by Plaintiff from judgment entered 26 November 2012
by Judge Richard L. Doughton in Cabarrus County Superior Court.
Heard in the Court of Appeals 12 December 2013.
Mills Law. P.A., by William L. Mills, III, for Plaintiff.
Orsbon & Fenninger LLP, by R. Anthony Orsbon, for
Defendant.
DILLON, Judge.
The Estate of Ruby Spainhour Mills, by and through William
L. Mills, III, Executor (Plaintiff), appeals from the trial
court’s judgment dismissing its claims against the Estate of
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Harold Luther Mills, by and through E. Thomas Hartsell, Executor
(Defendant), pursuant to Rule 12(b)(6) of the North Carolina
Rules of Civil Procedure for failure to state a claim upon which
relief could be granted. After careful review, we dismiss
Plaintiff’s interlocutory appeal as premature.
I. Factual & Procedural Background
On 10 February 2012, Plaintiff filed a complaint against
Defendant in Cabarrus County Superior Court, asserting a number
of claims relating to their joint ownership of a lake house
located in Mecklenburg County (the Lake House property).
Specifically, Plaintiff requested, inter alia, an order
requiring Defendant to convey its interest in the Lake House
property to Plaintiff and to reimburse Plaintiff for Defendant’s
share of some of the Lake House property-related expenses. On
27 March 2012, Defendant filed an answer and a Rule 12(b)(6)
motion to dismiss Plaintiff’s complaint for failure to state a
claim upon which relief could be granted. In its answer,
Defendant also asserted three counterclaims relating to their
joint ownership of the Lake House property, seeking affirmative
relief from Plaintiff in the form of monetary damages. On 26
November 2012, the trial court entered a judgment dismissing
Plaintiff’s complaint with prejudice on grounds that the
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complaint failed to state a claim against Defendant upon which
relief could be granted. From this judgment of dismissal,
Plaintiff now appeals.
II. Analysis
The threshold question is whether this Court has
jurisdiction over Plaintiff’s appeal. Though neither party has
raised this issue, it is well established 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)
(citing Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959);
Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956)).
A judgment of the Superior Court is either “final” or
“interlocutory” in nature. Veazey v. City of Durham, 231 N.C.
357, 361-62, 57 S.E.2d 377, 381 (1950). “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.” Id. An interlocutory judgment or order, in contrast,
“is one made during the pendency of an action, which does not
dispose of the case, but leaves it for further action by the
trial court in order to settle and determine the entire
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controversy.” Id. While a party has an appeal “of right” to
this Court from a final judgment of the Superior Court, N.C.
Gen. Stat. §7A-27(b)(1) (2011), an interlocutory order is
generally not immediately appealable, N.C. Gen. Stat. § 1A-1,
Rule 54(b) (2011).
In Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App.
377, 444 S.E.2d 252 (1994), we described the narrow
circumstances under which an interlocutory ruling is immediately
appealable:
“[I]n two instances a party is permitted to
appeal interlocutory orders . . . .” First,
a party is permitted to appeal from an
interlocutory order when the trial court
enters “a final judgment as to one or more
but fewer than all of the claims or parties”
and the trial court certifies in the
judgment that there is no just reason to
delay the appeal. Second, a party is
permitted to appeal from an interlocutory
order when “the order deprives the appellant
of a substantial right which would be
jeopardized absent a review prior to a final
determination on the merits.” Under either
of these two circumstances, it is the
appellant’s burden to present appropriate
grounds for this Court’s acceptance of an
interlocutory appeal and our Court's
responsibility to review those grounds.
Id. at 379, 444 S.E.2d at 253 (internal citations omitted)
(emphasis added).
The trial court’s judgment of dismissal, from which
Plaintiff presently appeals, disposed of Plaintiff’s claims
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against Defendant, but did not address Defendant’s counterclaims
against Plaintiff. There is no indication, based upon our
review of the record, that Defendant’s counterclaims have been
settled, dismissed, or otherwise disposed of. The trial court’s
judgment is, therefore, interlocutory, in that it “does not
dispose of the case, but leaves it for further action by the
trial court in order to settle and determine the entire
controversy.” Veazey, 231 N.C. at 362, 57 S.E.2d at 381.
Furthermore, the trial court did not certify the judgment as
immediately appealable, N.C. Gen. Stat. § 1A-1, Rule 54(b)
(2011); and, significantly, Plaintiff makes no argument that the
judgment affects a “substantial right,” see Hyatt v. Town of
Lake Lure, 191 N.C. App. 386, 389, 663 S.E.2d 320, 322 (2008)
(citing Jeffreys, 115 N.C. App at 380, 444 S.E.2d at 254, in
dismissing interlocutory appeal where there was no Rule 54(b)
certification in the record, and the appealing party “neither
state[d] nor argue[d] that her appeal affect[ed] a substantial
right”). As we stated in Hyatt, “[i]t is not the role of this
Court to create an avenue of appeal not properly asserted in
plaintiff’s brief.” Id. (citing Jeffreys, 115 N.C. App at 380,
444 S.E.2d at 254, for the proposition that “[i]t is not the
duty of this Court to construct arguments for or find support
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for appellant’s right to appeal from an interlocutory order;
instead, the appellant has the burden of showing this Court that
the order deprives the appellant of a substantial right which
would be jeopardized absent a review prior to a final
determination on the merits”). Plaintiff’s appeal is,
therefore, dismissed.
DISMISSED.
Judges STROUD and HUNTER, JR. concur.
Report per Rule 30(e).