Opinion
NO. COA12-654
12-18-2012
WAUGHTOWN LEASING COMPANY, LLC, and JAMES B. WILSON, JR., Plaintiffs, v. CITY OF WINSTON-SALEM; WINSTON-SALEM FORSYTH COUNTY INSPECTIONS DIVISION; RICHARD ZAMANI, Building Inspector, Defendants.
James B. Wilson & Associates, by James Barrett Wilson, Jr., and James A. Davis & Associates, PLLC, by James A. Davis, for Plaintiffs-Appellants. Office of the City Attorney, by Assistant City Attorneys Anargiros Kontos and Anthony J. Baker, for Defendants-Appellees.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Forsyth County
No. 10 CVS 5334
Appeal by Plaintiffs from order entered 16 December 2011 by Judge Richard W. Stone in Forsyth County Superior Court. Heard in the Court of Appeals 14 November 2012.
James B. Wilson & Associates, by James Barrett Wilson, Jr., and James A. Davis & Associates, PLLC, by James A. Davis, for Plaintiffs-Appellants.
Office of the City Attorney, by Assistant City Attorneys Anargiros Kontos and Anthony J. Baker, for Defendants-Appellees.
, Judge.
Waughtown Leasing Company, LLC, and James B. Wilson, Jr., (Plaintiffs), appeal from an order dismissing all but two of their claims for relief. We hold that this is an interlocutory order and dismiss the appeal.
Plaintiffs filed a Second Amended Complaint on 16 May 2011 in Forsyth County Superior Court. The complaint alleged numerous causes of action, including equal protection claims under the state and federal Constitutions, due process claims under the state and federal Constitutions, a vagueness challenge to the Uniform Development Ordinance, wrongful interference with contract rights claim, negligent interference with business relations claim, a 42 U.S.C. § 1983 claim, a federal takings claim, breach of contract claim, and defamation claim, against the City of Winston-Salem, Winston-Salem/Forsyth County Inspections Division, and Richard Zamani, a building inspector (Defendants). Defendants filed a motion to dismiss based on lack of subject matter jurisdiction and failure to state a claim on 15 July 2011. Plaintiff voluntarily dismissed the claim for negligent interference with business relations on 22 August 2011.
The trial court granted Defendants' motion to dismiss the equal protection claims, due process claims, vagueness challenge, § 1983 claim, and takings claim for failure to state a claim on 16 December 2011. The trial court granted Defendants' motion to dismiss for lack of subject matter jurisdiction as to the claim for wrongful interference with contract rights. The trial court denied the motion to dismiss for failure to state a claim as to Plaintiffs' claims for breach of contract and defamation. Plaintiffs filed notice of appeal on 17 January 2012.
Though not raised by the parties, the question of whether an appeal is interlocutory is a jurisdictional issue that the Court has a duty to raise sua sponte. Akers v. City of Mount Airy, 175 N.C. App. 777, 778, 625 S.E.2d 145, 146 (2006).
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. An 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.Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)(internal citations omitted). An order dismissing some of plaintiff's claims, but not all, is an interlocutory order. Mitsubishi Elec. & Elecs. USA, Inc. v. Duke Power Co., 155 N.C. App. 555, 559, 573 S.E.2d 742, 745 (2002); Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000). An appeal of right exists for an interlocutory order that "(1) [a]ffects a substantial right, or (2) [i]n effect determines the action and prevents a judgment from which appeal might be taken, or (3) [d]iscontinues the action, or (4) [g]rants or refuses a new trial." N.C. Gen. Stat. § 7A-27(d) (2011). An interlocutory order may only be appealed if the judge has certified that there is no reason for delay under Rule 54 or the appellant would be deprived of a substantial right. Turner, 137 N.C. App. at 141, 526 S.E.2d at 669. The order in this case has no Rule 54 certification, so the only basis for jurisdiction in this case would be deprivation of a substantial right.
"The appellant has the burden of showing that a substantial right would be lost without immediate review." Akers, 175 N.C. App. at 779, 625 S.E.2d at 146. "When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." N.C. R. App. P. 28(b)(4). This Court has dismissed appeals for failure to state the substantial right affected. Mosqueda v. Mosqueda, __ N.C. App. ___, ___, 721 S.E.2d 755, 758, disc., review denied, ___ N.C. __, 724 S.E.2d 919 (2012); Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 389-90, 663 S.E.2d 320, 322 (2008). "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 Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
Here, the order has not disposed of the entire controversy since two of Plaintiffs' claims remain pending. Plaintiffs do not acknowledge that the appeal is interlocutory and have failed to argue that the order affects a substantial right. We decline to find a substantial right where Plaintiffs have failed to argue that one exists; thus, we dismiss this appeal as interlocutory.
Dismissed.
Judges ELMORE and STROUD concur.
Report per Rule 30(e).