Hancox v. Wingate Univ.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1018
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
BRADFORD SCOTT HANCOX,
as Administrator of the
ESTATE OF MISHAWN B. MILLER.,
Plaintiff
v. Union County
No. 13 CVS 158
WINGATE UNIVERSITY; SMITH BROTHERS
FARM, a General Partnership;
KEITH SMITH, a General Partner;
GRADY SMITH, a General Partner;
and DONALD ERIC WATKINS,
Defendants
Appeal by plaintiff from order entered 28 March 2013 by
Judge W. David Lee in Union County Superior Court. Heard in the
Court of Appeals 22 January 2014.
Michael A. Jones for plaintiff-appellant.
Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for
defendant-appellee Wingate University.
DAVIS, Judge.
Bradford Scott Hancox (“Plaintiff”), the administrator of
the estate of Mishawn B. Miller (“Miller”), brings this
interlocutory appeal from the trial court’s order granting
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summary judgment in favor of Wingate University (“Wingate”).
After careful review, we conclude that Plaintiff has failed to
establish that his appeal implicates a substantial right.
Accordingly, we dismiss the appeal for lack of appellate
jurisdiction.
Factual Background
Miller was a recent high school graduate who was accepted
into Wingate for the 2010-11 academic year. Wingate invited
Miller to participate in its Early Academic Success Program
(“EASP”), which was held during the summer before the
participants’ freshman year and was designed to assist incoming
students in acclimating to college life.
On 14 August 2010, the EASP students were scheduled to
participate in a ropes course activity approximately five miles
from Wingate’s campus. Dr. Heather P. McDivitt (“Dr.
McDivitt”), an academic advisor and program coordinator for
EASP, determined that based on the program’s goal of introducing
students to college life, “it was appropriate to have the EASP
students ride with student mentors or carpool with fellow EASP
students to the ropes course.” In her affidavit, Dr. McDivitt
stated that the students “made their own arrangements for
transportation” to the ropes course and that she did not assign
drivers or riders.
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Miller drove himself and three fellow students to the ropes
course in his personal vehicle. While en route, Miller’s
vehicle collided with a truck owned by Smith Brothers Farm and
driven by Donald Eric Watkins (“Watkins”). Miller and one
passenger were killed, and the other two passengers sustained
serious injuries.
On 13 August 2012, Plaintiff filed suit against Wingate,
Smith Brothers Farm, Watkins, and Keith Smith and Grady Smith —
the two general partners of Smith Brothers Farm — alleging that
each party’s negligence proximately caused Miller’s death. On
23 January 2013, Wingate filed a motion for summary judgment,
and on 18 March 2013, Defendants Smith Brothers Farm, Keith
Smith, Grady Smith, and Watkins filed a joint summary judgment
motion.
By order entered on 28 March 2013, the trial court granted
summary judgment in favor of Wingate but denied the remaining
defendants’ motion, determining that “there are genuine issues
of material fact with respect to the plaintiff’s remaining
claims for relief against the defendants Smith Brothers Farm,
Keith Smith, Grady Smith and Donald Eric Watkins and that said
defendants are not entitled to judgment as a matter of law.”
Plaintiff gave timely notice of appeal. The sole issue raised
on appeal is whether the trial court erred in entering summary
judgment in favor of Wingate.
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Analysis
Before we can address the substantive issues presented in
Plaintiff’s appeal, we must determine whether appellate
jurisdiction exists over the appeal. Because the trial court’s
order granted summary judgment as to only one defendant,
Plaintiff’s claims against the remaining four defendants are
still pending and, therefore, this appeal is interlocutory. See
Myers v. Barringer, 101 N.C. App. 168, 172, 398 S.E.2d 615, 617
(1990) (“Summary judgment granted to some but not all defendants
is an interlocutory judgment since it does not dispose of the
case but leaves it for further action for the trial court in
order to settle and determine the entire controversy.” (citation
and internal quotation marks omitted)).
Because “[e]ntry of judgment for fewer than all the
defendants is not a final judgment . . . [such orders] may not
be appealed in the absence of certification pursuant to Rule
54(b) [of the North Carolina Rules of Civil Procedure] unless
the entry of summary judgment affects a substantial right.”
Camp v. Leonard, 133 N.C. App. 554, 557, 515 S.E.2d 909, 912
(1999). As the trial court did not certify the order granting
summary judgment in favor of Wingate for immediate appeal
pursuant to Rule 54(b), it is Plaintiff’s burden to show that a
substantial right would be jeopardized unless he is permitted to
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immediately appeal. Embler v. Embler, 143 N.C. App. 162, 166,
545 S.E.2d 259, 262 (2001).
It is well established that the appellant
bears the burden of showing to this Court
that the appeal is proper. . . . [W]hen an
appeal is interlocutory, the appellant must
include in its statement of grounds for
appellate review “sufficient facts and
argument to support appellate review on the
ground that the challenged order affects a
substantial right.”
Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338
(quoting N.C.R. App. P. 28(b)(4)), aff’d per curiam, 360 N.C.
53, 619 S.E.2d 502 (2005).
In his brief, Plaintiff acknowledges the interlocutory
nature of his appeal but states that the appeal “is taken on the
grounds that it is a case of first impression, or in the
alternative, that there should be an extension of the
application of current law to [the] case at bar.” However,
Plaintiff cites no legal authority, and we know of none,
supporting the proposition that the existence of appellate
jurisdiction over an interlocutory appeal is affected by the
novelty of the underlying issues contained therein.
Plaintiff’s only reference to the issue of whether this
appeal affects a substantial right is his bare assertion that
delaying the appeal may expose him to “the costly burden of
litigating substantially the same matter twice.” However,
Plaintiff has provided no specific argument nor cited to any
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case law to support this assertion. See Hoke Cty. Bd. of Educ. v.
State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (“The
appellants must present more than a bare assertion that the order
affects a substantial right; they must demonstrate why the order
affects a substantial right.”), disc. review denied, 363 N.C. 653,
686 S.E.2d 515 (2009).
Our prior caselaw has made clear that “[i]t 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 Joint Venture, 115 N.C. App. 377, 380,
444 S.E.2d 252, 254 (1994). Because Plaintiff has failed to
establish that a substantial right would be lost or prejudiced
unless an immediate appeal is allowed, we are required to
dismiss the appeal.
Conclusion
For the reasons set forth above, Plaintiff’s interlocutory
appeal is dismissed.
DISMISSED.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).