An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA01-1373
NORTH CAROLINA COURT OF APPEALS
Filed: 6 August 2002
STEVEN B. PFAFF,
Plaintiff
v.
Forsyth County
No. 01 CVS 3617
BLUE RHINO CORPORATION and
DAVID C. SLONE,
Defendants
Appeal by plaintiff from order entered 15 August 2001 by Judge
Lindsay R. Davis, Jr. in Forsyth County Superior Court.
Heard in
the Court of Appeals 15 July 2002.
Kennedy, Kennedy, Kennedy, and Kennedy L.L.P., by Harvey L.
Kennedy and Harold L. Kennedy, III, for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by David A. Irvin and
Lisa M. Drabik, for defendant-appellees.
WALKER, Judge.
Plaintiff filed this action on 3 April 2001, alleging claims
of fraud, negligent misrepresentation, and unfair and deceptive
trade practices.
Defendants answered on 3 May 2001, denying
plaintiff’s allegations. Additionally, defendants moved to dismiss
plaintiff’s claim for unfair and deceptive trade practices.
On 15
August 2001, the trial court allowed defendants’ motion to dismiss
-2pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief can be granted.
Plaintiff appeals.
The threshold issue to consider is whether plaintiff’s appeal
is premature and, therefore, is not properly before this Court.
“An order or judgment is interlocutory if it is made during the
pendency of an action and does not dispose of the case but requires
further action by the trial court in order to finally determine the
entire controversy.”
N.C. Dept. of Transportation v. Page, 119
N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995).
This Court has
stated:
There are only two means by which an
interlocutory order may be appealed: (1) if
the order is final as to some but not all of
the claims or parties and the trial court
certifies there is no just reason to delay the
appeal pursuant to N.C.R. Civ. P. 54(b) or (2)
“if the trial court’s decision deprives the
appellant of a substantial right which would
be lost absent immediate review.”
Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666,
669 (2000)(quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477
S.E.2d 693, 695 (1996), disc. rev. denied, 345 N.C. 340, 483 S.E.2d
161 (1997)); see also N.C. Gen. Stat. § 1-277(a)(2001) and N.C.
Gen. Stat. § 7A-27(d)(1).
Here, plaintiff appeals from an order dismissing one of his
three claims for relief.
The order is clearly an interlocutory
order, and the order was not certified for immediate appeal by the
trial court.
Furthermore, plaintiff fails to show how the order
affects a substantial right, citing no harm that could not be
corrected upon appeal nor any right that would be clearly lost
-3absent 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
Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).
We further note that plaintiff fails to include a statement in
his brief stating the grounds for interlocutory review.
Our
appellate rules require that an appellant’s brief must contain a
statement of the grounds for review and provide “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).
Accordingly, because there was no final judgment in this case
and no substantial rights of the parties were affected, we hold
that this appeal is premature and we dismiss it as interlocutory.
Appeal dismissed.
Judges THOMAS and SMITH concur.
Report per Rule 30(e).
