Jeffreys v. Raleigh Oaks Joint Venture , 115 N.C. App. 377 ( 1994 )

444 S.E.2d 252 (1994) 115 N.C. App. 377

Lois Upchurch JEFFREYS and Joseph Randolph Jeffreys, Plaintiffs,
v.
RALEIGH OAKS JOINT VENTURE, Raleigh Oaks Shopping Center, Inc., a Tennessee Corporation Seymour Vogel, Syson Group, Inc., W.R. Henderson & Associates, Inc., a North Carolina Corporation, W.R. Henderson, Vernon Brown, Raleigh Oaks Limited, a North Carolina Partnership, and Fleet National Bank, Defendants.

No. 9310SC431.

Court of Appeals of North Carolina.

June 21, 1994.

McMillan, Kimzey & Smith by James M. Kimzey and Katherine E. Jean, Raleigh, for plaintiff-appellees.

Howard, From, Stallings & Hutson, P.A. by John N. Hutson, Jr., Raleigh, for defendants-appellant.

ORR, Judge.

The sole issue before this Court is whether the trial court erred in granting plaintiffs' summary judgment motion as to ROJV's counterclaims against plaintiffs. We need not address this issue, however, as this appeal is interlocutory and ROJV has failed to show this Court that a substantial right of ROJV's will be affected if ROJV is not given the right of immediate appeal from this order.

ROJV is appealing from the grant of partial summary judgment dismissing its counterclaims against plaintiffs. "A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group, Inc. v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). "The reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts." Fraser v. Di Santi 75 N.C.App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).

"Nonetheless, in two instances a party is permitted to appeal interlocutory orders...." Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677 (emphasis by underline added). 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. N.C.R.Civ.P. 54(b); Liggett Group Inc., 113 N.C.App. at 23, 437 S.E.2d at 677. 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." Southern Uniform Rentals, Inc. v. Iowa Nat'l Mut. Ins. Co., 90 N.C.App. 738, 740, 370 S.E.2d 76, 78 (1988); N.C.Gen. Stat. § 1-277. 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.

Because the trial court in the case sub judice made no certification as required by Rule 54(b) of the North Carolina Rules of Civil Procedure, the first avenue of appeal is closed to ROJV. See Liggett Group, Inc., 113 N.C.App. at 24, 437 S.E.2d at 677. ROJV did not, therefore, have a right to appeal the order in this case unless the order affected a substantial right that would work injury to ROJV if not corrected before appeal from final judgment. Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). ROJV has failed, however, to make such a showing to this Court.

ROJV presented neither argument nor citation to show this Court that ROJV had the right to appeal the order dismissing its counterclaims. 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; 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. See GLYK and Associates v. Winston-Salem Southbound Railway Co., 55 N.C.App. 165, 170-71, 285 S.E.2d 277, 280 (1981) (wherein this Court stated that the question of whether it should entertain an appeal from an interlocutory order "depend[ed] upon whether [the appellant] has shown that it was deprived of any substantial right" and dismissed the appeal upon finding that the appellant "failed to show that the [interlocutory order] deprived it of any substantial right"); See also Godley Auction Co., Inc. v. Myers, 40 N.C.App. 570, 574, 253 S.E.2d 362, 365 (1979) (dismissing appeal from interlocutory order when appellant "failed to show " "that the trial court's interlocutory order ``[would] work an injury to him if not corrected before an appeal from the final judgment.'") (emphasis added); See generally Hajmm Co. v. House of Raeford Farms, Inc., 328 N.C. 578, 589, 403 S.E.2d 483, 490 (1991) ("In civil cases, ``[t]he burden is on the appellant not only to show error but to enable the court to see that he was prejudiced or the verdict of the jury probably influenced thereby.'"); Gum v. Gum, 107 N.C.App. 734, 738, 421 S.E.2d 788, 791 (1992) (appellant has the burden of showing error). Accordingly, we dismiss ROJV's appeal.

Further, Defendants Seymour Vogel and Memphis General Shopping Centers failed to file a brief with this Court. Appellate review is limited to questions presented to the reviewing court by briefs in accordance with the Rules of Appellate Procedure. See N.C.R.App.P. 28(a). Accordingly, we dismiss the appeal of these defendants.

Dismissed.

COZORT and GREENE, JJ., concur.