Rooks v. Blake ( 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An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-486
NORTH CAROLINA COURT OF APPEALS
Filed: 21 October 2014
JOHN T. ROOKS,
Plaintiff,
v. Pender County
No. 12 CVS 142
JUNE R. BLAKE, individually, in
her capacity as ATTORNEY-IN-FACT
for Norman A. Rooks, and in her
capacity as EXECUTRIX of the
Estate of Norman A. Rooks,
Defendant.
Appeal by plaintiff from order entered 10 February 2014 by
Judge John E. Nobles, Jr., in Pender County Superior Court.
Heard in the Court of Appeals 22 September 2014.
Ennis and Associates, P.A., by David Paul Ennis, for
plaintiff-appellant.
Sherman & Rodgers, PLLC, by Richard T. Rodgers, Jr., for
defendant-appellee.
McCULLOUGH, Judge.
Plaintiff appeals from an order denying his motion for
summary judgment. We dismiss the appeal as interlocutory.
On 14 February 2012, plaintiff filed an action against
defendant alleging breach of fiduciary duty, constructive fraud,
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and gross negligence. Defendant answered, denying the material
allegations. Plaintiff filed a motion for summary judgment as
to all claims in January 2014. By order entered 10 February
2014, the trial court found that “genuine material issues of
fact exist that should be determined by a jury” and denied
plaintiff’s motion for summary judgment. Plaintiff appeals.
The dispositive issue is whether this case is properly
before this Court. Parties have an appeal of right to this
Court “[f]rom any final judgment of a superior court[.]” N.C.
Gen. Stat. § 7A-27(b)(1) (2013). “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.”
Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377,
381 (1950). On the other hand, “[a]n interlocutory order 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 controversy.” Id. at
362, 57 S.E.2d at 381. “The denial of summary judgment is not a
final judgment, but rather is interlocutory in nature.”
McCallum v. North Carolina Co-op. Extension Service of N.C.
State University, 142 N.C. App. 48, 50, 542 S.E.2d 227, 230
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(2001) (citation omitted). Thus, Judge Nobles’ order denying
plaintiff’s motion for summary judgment is interlocutory.
To appeal an interlocutory order, an appellant must
demonstrate that the trial court certified its order for
immediate appeal pursuant to Rule 54(b) of our Rules of Civil
Procedure or that the order deprives the appellant of a
substantial right. Currin & Currin Constr., Inc. v. Lingerfelt,
158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003). This case
does not have Rule 54(b) certification, nor would this case be
appropriate for certification. See Knighten v. Barnhill Contr.
Co., 122 N.C. App. 109, 111, 468 S.E.2d 564, 565 (1996) (“The
denial of a motion for summary judgment is not a final judgment
and is generally not immediately appealable even if the trial
court has attempted to certify it for appeal under Rule 54(b).”)
(citation omitted). Thus, for this Court to review Judge
Nobles’ order, plaintiff must show that the order affects a
substantial right. Plaintiff, however, fails to make any
argument that a substantial right would be affected absent
immediate review. “It is not the duty of this Court to
construct arguments for or find support for appellant’s right to
appeal from an interlocutory order[.]” Jeffreys v. Raleigh Oaks
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Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994). Accordingly, we dismiss the appeal.
Dismissed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).