Furr v. Porters Neck Country Club, Inc

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NO. COA12-1092 NORTH CAROLINA COURT OF APPEALS Filed: 2 April 2013 R. D. FURR CONSTRUCTION, INC., Plaintiff, v. New Hanover County No. 11 CVS 3464 PORTERS NECK COUNTRY CLUB, INC., a North Carolina nonprofit corporation; and PORTERS NECK COUNTRY CLUB TRANSITION CORP., a North Carolina nonprofit corporation; and PORTERS NECK HOMEOWNERS ASSOCIATION, INC., a North Carolina nonprofit corporation; and FIRST CITIZENS BANK AND TRUST COMPANY, a North Carolina corporation; and ROBERT L. NORRIS, Jr., Trustee in Deed of Trust Recorded in Book 4935 At Page 1937 of the New Hanover County Registry; and FIRST BANCORP, a North Carolina bankholding company, trading and doing business as FIRST BANK; and TERESA NIXON, Trustee in Deed of Trust recorded in Book 1745 at Page 386 and in the Deed of Trust recorded in Book 1900 at Page 369, of the New Hanover County Registry; and CAPE FEAR PUBLIC UTILITY AUTHORITY, a body politic incorporated in the State of North Carolina; and PORTERS NECK COMPANY, INC., a North Carolina corporation, Defendants. _________________________ NO. COA12-1095 NORTH CAROLINA COURT OF APPEALS Filed: 2 April 2013 RICHARD D. FURR, Plaintiff, v. New Hanover County No. 11 CVS 3465 PORTERS NECK COUNTRY CLUB, INC., a North Carolina nonprofit corporation; and PORTERS NECK COUNTRY CLUB TRANSITION CORP., a North Carolina nonprofit corporation; and PORTERS NECK HOMEOWNERS ASSOCIATION, INC., a North Carolina nonprofit corporation; and FIRST CITIZENS BANK AND TRUST COMPANY, a North Carolina corporation; and ROBERT L. NORRIS, Jr., Trustee in Deed of Trust Recorded in Book 4935 At Page 1937 of the New Hanover County Registry; and CAPE FEAR PUBLIC UTILITY AUTHORITY, a body politic incorporated in the State of North Carolina; and PORTERS NECK COMPANY, INC., a North Carolina corporation, Defendants. Appeal by plaintiffs from orders entered 23 April 2012 nunc pro tunc 8 March 2012 by Judge William R. Pittman in New Hanover County Superior Court. Heard in the Court of Appeals 11 March 2013. Charles R. Brewer, for plaintiffs appellants. -3Shanklin & Nichols, LLP, by Kenneth A. Shanklin, Matthew A. Nichols, and Cynthia W. Baldwin, for defendant appellee Porters Neck Company, Inc. MARTIN, Chief Judge. These cases involve identical issues and have been joined for the purposes of appeal. Plaintiffs R. D. Furr Construction, Inc. and Richard D. Furr appeal from orders dismissing their claims against defendant Porters Neck Company, Inc. pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). Plaintiffs several defendants, ( defendant ), property filed complaints including alleging adjacent We dismiss the appeals. that to on 17 August Porters water plaintiffs Neck from 2011 against Company, wells properties Inc. located in on Phase 1, Section 1 of Porters Neck Plantation Subdivision in New Hanover County, North Carolina, is wrongfully store[d] on plaintiffs properties, that such water is stored for the purpose of maintaining the golf course belonging to one of the named defendants, and that such continuing trespass. the removal of wrongful storage constitutes a Plaintiffs sought injunctions requiring water now being stored on plaintiffs properties and the prevention of such water being plac[ed] or stor[ed] on plaintiffs properties in the future, monetary judgments for the reasonable rental of plaintiffs properties -4for the storage of water from 1992 to the present, and costs. From the record before us, it appears that prior to filing an answer to either complaint, defendant Porters Neck Company, Inc. moved to dismiss plaintiffs complaints as to it with prejudice pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1), (b)(6), and (b)(7). Defendant s motions to dismiss were heard on 8 March 2012. At the conclusion of the hearing on defendant s motions, the trial court subsequently N.C.G.S. took moved § 1A-1, Company, Inc. the to matter under advisement. amend their complaints Rule 15(a) as to defendant Plaintiffs pursuant Porters to Neck Defendant moved to strike plaintiffs motions to amend their complaints. On 23 April 2012, the trial court filed orders granting defendant s motions to dismiss and dismissing plaintiffs complaints as to it pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), entering the orders nunc pro tunc for March 8, 2012. Plaintiffs gave notice of appeal dismissing their complaints as to defendant. from the orders The records do not reflect that the trial court entered orders with respect to either of plaintiffs motions to amend their complaints or with respect to defendant s motions to strike plaintiffs motions to amend. Because this Court allowed plaintiffs motions to consolidate their separate appeals pursuant to Rule 40 of the North Carolina Rules of Appellate Procedure, we render a single -5opinion on all issues properly before us. See N.C.R. App. P. 40 ( Two or more actions that involve common issues of law may be consolidated for hearing upon motion of a party to any of the actions made to the appellate court wherein all are docketed . . . . ). _________________________ Generally, interlocutory there orders is and no right of immediate judgments. Sharpe appeal v. from Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) ( Interlocutory orders and judgments are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy. (internal quotation marks omitted)), on remand, 137 N.C. App. 82, 527 S.E.2d 75 (2000). However, [n]otwithstanding this cardinal tenet of appellate practice, immediate appeal . . . is available from an interlocutory order or judgment which affects a substantial right. 522 S.E.2d at 579 (citations and internal Id. at 161 62, quotation marks omitted) ( [A]n interlocutory order affects a substantial right if the order deprive[s] the appealing party of a substantial right which will be lost if the order is not reviewed before a final judgment is entered. (second alteration in original) (internal quotation marks omitted)); see also N.C. Gen. Stat. -6§ 1-277(a) (2011); N.C. Gen. Stat. § 7A-27(d)(1) (2011). Nevertheless, [w]hen 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. burden to show N.C.R. App. P. 28(b)(4). that an appeal is proper is Since [t]he borne by the appellants, appellants must present more than a bare assertion that they must demonstrate why the order affects a substantial right. Hoke Cty. the Bd. 679 S.E.2d order of affects Educ. 512, v. 516, 686 S.E.2d 515 (2009). a substantial State, disc. 198 N.C. review right; App. denied, 274, 277 78, 363 N.C. 653, 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. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Where the appellant fails to carry the burden of making such a showing to the [C]ourt, the appeal will be dismissed. Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d (citing 336, 338 Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254), aff d per curiam, 360 N.C. 53, 619 S.E.2d -7502 (2005). In the present case, plaintiffs concede that the orders from which they appeal are interlocutory, but make no showing to support their assertion that a substantial right will be lost if the challenged orders are not reviewed before final judgments are entered in these actions. Instead, plaintiffs declare only that [t]he substantial right at issue relates to the ability of the plaintiff[s] to pursue the claim in a single trial, and that plaintiff[s] [have] a substantial right to have one jury decide whether injuries or the conduct should be of bound the defendants by the caused judgment. [their] Because plaintiffs unsupported assertions are not sufficient to comply with the requirements of Appellate Rule 28(b)(4), and plaintiffs have not demonstrated that they are entitled to immediate review of the trial court s orders dismissing defendant Porters Neck Company, Inc. from plaintiffs respective dismiss these appeals. Dismissed. Judges HUNTER and STEPHENS concur. Report per Rule 30(e). actions, we must

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