Holbert v. Holbert

NO. COA13-951
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
MARGARITA BELILA HOLBERT,
Plaintiff

Henderson County
v.
No. 09 CVD 2008

LARRY R. HOLBERT,
Defendant

Appeal by defendant from orders entered 18 March 2013 and 4

June 2013 by Judge Peter Knight in Henderson County District

Court. Heard in the Court of Appeals 6 January 2014.

Prince, Youngblood & Massagee, PLLC, by Boyd B. Massagee,
Jr., for Plaintiff-Appellee.

F.B. Jackson & Associates Law Firm, PLLC, by Frank B.
Jackson and Angela S. Beeker, for Defendant-Appellant.

ERVIN, Judge.

Defendant Larry R. Holbert appeals from orders denying his

motion for summary judgment directed to Plaintiff’s equitable

distribution claim and granting Plaintiff’s motion for summary

judgment with respect to one of the grounds upon which Defendant

sought to challenge the validity of her equitable distribution

claim, with the relevant issue being the validity of Defendant’s

contention that his marriage to Plaintiff Margarita Belila

Holbert had been performed by an individual who was not
 -2-
authorized to perform marriage ceremonies and the extent to

which the trial court was precluded from considering that

contention on the merits in light of an earlier consent

judgment, and denying Defendant’s motion for relief from that

earlier consent judgment predicated on the theory that the

consent judgment failed to accurately reflect the agreement

between the parties that it was supposed to memorialize. After

careful consideration of Defendant’s challenges to the trial

court’s orders in light of the record and the applicable law, we

conclude that Defendant’s appeal should be dismissed as having

been taken from unappealable interlocutory orders.

I. Factual Background

A. Substantive Facts

Plaintiff came to the United States from the Philippines on

or about 10 December 2000 as Defendant’s fiancée. The parties

were married on 9 February 2001 by an individual named Earl R.

Jones, who was selected to perform that role by Defendant.

Although he was “licensed in the Gospel Ministry” at the time

that he conducted the parties’ marriage ceremony, Mr. Jones had

not been “ordained” by the church with which he was affiliated

at that time. Mr. Jones was, however, “ordained” on 30 March

2008.
 -3-
After the performance of the marriage ceremony, Plaintiff

and Defendant held themselves out to be husband and wife. The

parties’ relationship began to deteriorate when Defendant began

to curse Plaintiff, state that it would have been cheaper to

have her killed, and offer to pay others to marry her. At

approximately the time that the parties separated on 16

September 2009, Defendant locked Plaintiff out of the marital

residence and changed all of the locks.

B. Procedural Facts

On 6 October 2009, Plaintiff filed a complaint in which she

claimed that she had been abandoned by Defendant and sought a

divorce from bed and board, post-separation support, alimony,

equitable distribution, and an award of attorney’s fees. On 20

October 2009, Defendant filed a motion seeking to have

Plaintiff’s complaint dismissed in reliance upon the parties’

premarital agreements and to enforce the provisions of their

premarital agreements. On 6 April 2010, the parties filed a

memorandum of decision in which Defendant “waive[d] any defense

to any cause of action set out in the complaint on the basis of

any premarital agreement” and “any defense by virtue of any

other premarital agreement not identified in his answer.” In

return for this commitment and the payment of $50,000, Plaintiff

waived all of the claims that she had asserted against Defendant
 -4-
except for the right to have marital and divisible property

equitably distributed. As part of this process, the parties

agreed that it would be unnecessary for their signatures to

appear on the formal consent judgment. On 6 May 2010, Judge

Athena Fox Brooks entered a consent judgment that provided, in

pertinent part, that “[b]oth parties agree that [Plaintiff] is

entitled to proceed with her claim of equitable distribution

against [Defendant] without any defense thereto”; that

Defendant’s dismissal motion should be denied; and that the only

issue remaining between the parties involved the equitable

distribution of their marital and divisible property.1

On 6 October 2010, Defendant filed a complaint in a

separate action seeking an absolute divorce. On 23 November

2010, the court granted Defendant an absolute divorce.

On 4 February 2011, Defendant filed a motion seeking to

have the 6 April 2010 memorandum of decision and the 6 May 2010

consent judgment set aside pursuant to N.C. Gen. Stat. § 1A-1,

Rule 60(b)(1), (4) and (6). In support of this request,

Defendant contended that he had entered into the agreement

memorialized in these documents at a time when his cognition was

impaired and that he had been unable to understand the contents
1
The 6 May 2010 consent judgment also memorialized an
agreement between the parties under which Plaintiff agreed to
dismiss a domestic violence proceeding that she had initiated
against Defendant.
 -5-
of the 6 April 2010 memorandum of decision when he signed it.

On 11 May 2011 and 8 June 2011, respectively, the trial court

entered an order and an amended order denying Defendant’s motion

on the grounds that he was presumed to be competent when he

consented to the agreement memorialized in the 6 April 2010

memorandum of decision and the 6 May 2010 consent judgment and

that he had failed to present substantial evidence tending to

show that he was incompetent at the time that he entered into

this agreement.

On 11 October 2012, Defendant, who was now represented by

new legal counsel, filed an answer and counterclaim in which he

asserted, among other things, that he was entitled to rely on

the provisions of the parties’ premarital agreement as a defense

to Plaintiff’s equitable distribution claim, with this assertion

resting upon his recent discovery that Mr. Jones was not

authorized to conduct marriage ceremonies under North Carolina

law, and that he was entitled to have his marriage to Plaintiff

annulled, with this assertion resting on a contention that Mr.

Jones had not been legally authorized to perform their marriage

ceremony and that the parties had never consummated their

marriage. In addition, Defendant filed a motion for relief from

judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) in the

action in which he had been divorced from Plaintiff on 16
 -6-
October 2012 in which he alleged that he had recently learned

that Mr. Jones had not been authorized to conduct the parties’

marriage ceremony. On 8 November 2012, Plaintiff filed a

response to Defendant’s filings in the equitable distribution

and divorce proceedings in which she asserted a number of

affirmative defenses to Defendant’s contentions, including, but

not limited to, ratification, collateral estoppel, judicial

estoppel, waiver, fraud, and statute of limitations.

On 3 December 2012, Defendant filed a motion seeking the

entry of summary judgment in his favor with respect to

Plaintiff’s equitable distribution claim on the grounds that

there “was no valid marriage between the parties” given the fact

that Mr. Jones had not been “ordained” at the time of the

parties’ marriage ceremony. On 6 February 2013, Plaintiff moved

for partial summary judgment with respect to the issue of

whether (1) the parties’ premarital agreements barred her

equitable distribution claim; (2) Plaintiff had waived her right

to assert an equitable distribution claim by executing the

parties’ premarital agreements, (3) Plaintiff was estopped by

the parties’ premarital agreements from asserting an equitable

distribution claim, (4) the fact that Plaintiff took a salary

from Defendant barred her from asserting an equitable

distribution claim, and (5) Plaintiff had misappropriated money
 -7-
from Defendant. After a hearing held on 18 February 2013, the

trial court entered an order on 18 March 2013 granting

Plaintiff’s partial summary judgment motion and specifically

determining, among other things, that Defendant was barred from

asserting the parties’ premarital agreement as a defense to

Plaintiff’s equitable distribution claim by the 6 April 2010

memorandum of decision and 6 May 2010 consent judgment. In

addition, the trial court entered another order on the same date

denying Defendant’s request for an annulment of his marriage to

Plaintiff given that he had elected the remedy of absolute

divorce rather than annulment with full knowledge of the facts

underlying his contention that the parties’ marriage had never

been consummated; denying Defendant’s request for the entry of

summary judgment in his favor with respect to Plaintiff’s

equitable distribution claim on the grounds that the record

reflected the existence of genuine issues of material facts

concerning the extent to which Mr. Jones had the authority to

conduct the parties’ wedding ceremony; and granting summary

judgment in favor of Plaintiff with respect to the issue of

whether Defendant was entitled to assert any defense, including

the invalidity of the parties’ marriage, in opposition to

Plaintiff’s equitable distribution claim given the provisions of

the 6 April 2010 memorandum of decision and the 6 May 2010
 -8-
consent judgment. Defendant noted an appeal to this Court from

the second 18 March 2013 order on 17 April 2013.

On 16 April 2013, Defendant filed a motion for relief from

the 6 May 2010 consent judgment and the second 18 March 2013

order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(3) and (4),

or, in the alternative, for a new trial pursuant to N.C. Gen.

Stat. § 1A-1, Rule 59, with both requests for relief predicated

on the theory that the language concerning Defendant’s waiver of

the right to assert any defenses to Plaintiff’s equitable

distribution claim contained in the 6 May 2010 order was

inconsistent with the equivalent provision of the 6 April 2010

memorandum of decision and that this inconsistency between the

relevant provisions of the two documents indicated that Judge

Brooks lacked jurisdiction to enter the 6 May 2013 order to the

extent that it precluded him from asserting any defense to

Plaintiff’s equitable distribution claim. On 4 June 2013, the

trial court entered an order denying Defendant’s motion, finding

that Defendant’s motions were “closely related to the Motions

previously heard by the undersigned and certified for immediate

review by the Court of Appeals,” that there was a “need for a

determination of these issues prior to an Equitable Distribution

Trial,” and that “the undersigned respectfully certifies to the

Court of Appeals that there are no just reasons for delay in
 -9-
reviewing these orders.” On 5 June 2013, the trial court

entered a certification stating that it deemed “it appropriate

that the orders entered by him” on 18 March 2013 “be reviewed by

the North Carolina Court of Appeals, and further respectfully

certifies to the North Carolina Court of Appeals that there is

no just reason for delay in so reviewing these orders.”2 On 5

June 2013, Defendant noted an appeal to this Court from the 4

June 2013 order.

II. Substantive Legal Analysis

A. General Principles of Appellate Jurisdiction

As an initial matter, we must address the extent to which

this Court has jurisdiction over Defendant’s challenges to the

2
We note, in passing, that Defendant never noted an appeal
from the first 18 March 2013 order, that the trial court
certified the 18 March 2013 orders almost two months after
Defendant noted an appeal to this Court from the second 18 March
2013 order, and that the trial court’s signature on the
attempted certification of the 18 March 2013 orders antedates
the date upon which the certification was file-stamped by three
days. However, given that Defendant has not advanced any
substantive challenge to the validity of the first 18 March 2013
order, that Defendant’s failure to advance any arguments in his
brief challenging the validity of a particular order precludes
us from assessing its validity on appeal, State v. Garcell, 363
N.C. 10, 70, 678 S.E.2d 618, 655 (citing N.C. R. App. P.
28(b)(6) and State v. Raines, 362 N.C. 1, 26, 653 S.E.2d 126,
142 (2007), cert. denied, 557 U.S. 934, 129 S. Ct. 2857, 174 L.
Ed. 2d 601 (2009)), cert. denied, 558 U.S. 999, 130 S. Ct. 510,
175 L. Ed. 2d 362 (2009), and that the trial court’s attempt to
certify the second 18 March 2013 order for immediate review is
ineffective for other reasons, we need not comment on the
validity of the trial court’s attempt to certify the first 18
March 2013 order for immediate review.
 -10-
second 18 March 2013 and the 4 June 2013 orders. Although

Defendant acknowledges that both of the orders that he wishes to

challenge on appeal are interlocutory, he contends that both

orders are covered by exceptions to the general rule precluding

appellate review of interlocutory orders. We are not persuaded

by Defendant’s arguments.

“An order is either ‘interlocutory or the final

determination of the rights of the parties.’ ‘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.’” Harbour Point Homeowners’ Ass’n v. DJF Enters.,

Inc., 206 N.C. App. 152, 156, 697 S.E.2d 439, 443 (2010)

(internal quotation marks and citations omitted) (quoting N.C.

Gen. Stat. § 1A-1, Rule 54(a), and Veazey v. City of Durham, 231

N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). “Ordinarily, an

appeal will lie only from a final judgment.” Steele v. Moore-

Flesher Hauling Co., 260 N.C. 486, 491, 133 S.E.2d 197, 201

(1963). However, interlocutory orders are appealable under

certain circumstances. For example, a party is allowed to take

an appeal from an interlocutory order that “affects a

substantial right claimed in any action or proceeding,” N.C.

Gen. Stat. § 1-277(a); see also N.C. Gen. Stat. § 7A-
 -11-
27(b)(3)(a), with the extent to which an interlocutory order

affects a substantial right requiring “consideration of ‘the

particular facts of that case and the procedural context in

which the order from which appeal is sought was entered.’”

Dep’t of Transp. v. Rowe, 351 N.C. 172, 175, 521 S.E.2d 707, 709

(1999) (quoting Waters v. Qualified Personnel, Inc., 294 N.C.

200, 208, 240 S.E.2d 338, 343 (1978)). In addition, N.C. Gen.

Stat. § 1A-1, Rule 54(b) provides that a “court may enter a

final judgment as to one or more but fewer than all of the

claims or parties only if there is no just reason for delay and

it is so determined in the judgment,” which “shall then be

subject to review by appeal or as otherwise provided by these

rules or other statutes.” However, the fact “[t]hat the trial

court declared [an order] to be a final [order for purposes of

N.C. Gen. Stat. § 1A-1, Rule 54(b)] does not make it so,” Tridyn

Indus. V. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443,

447 (1979), with any certification of an order that is not a

final judgment as to a claim or party being ineffective.

Anderson v. Atl. Cas. Ins. Co., 134 N.C. App. 724, 726, 518

S.E.2d 786, 788 (1999). “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
 -12-
those grounds.” Bullard v. Tall House Bldg. Co., 196 N.C. App.

627, 637, 676 S.E.2d 96, 103 (2009) (quoting Jeffreys v. Raleigh

Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253

(1994)). As a result, given Defendant’s concession that the

orders that he seeks to challenge on appeal are interlocutory in

nature, we must now consider the extent to which either of these

orders are properly before us for review at this time.3

B. Analysis of Appealability of Specific Orders

1. Second 18 March 2013 Order

Although the trial court addressed a number of issues in

the second 18 March 2013 order, the only portion of that order

that Defendant seeks to challenge on appeal at this time is the

trial court’s decision to grant summary judgment in Plaintiff’s

favor on the grounds that Defendant waived the right to assert

any defenses to Plaintiff’s equitable distribution claim in the

6 April 2010 memorandum of decision and the 6 May 2010 consent

order. According to Defendant, the trial court’s decision to

preclude him from asserting any defenses to Plaintiff’s

equitable distribution claim affects a substantial right.

3
As a result of the fact that Defendant noted his appeals
from the second 18 March 2013 and 4 June 2013 orders prior to 23
August 2013 and the fact that neither of the orders that
Defendant wishes to challenge on appeal represent a final
adjudication of Plaintiff’s equitable distribution claim, the
provisions of N.C. Gen. Stat. § 50-19.1 do not apply in this
instance.
 -13-
As an initial matter, Defendant argues, in reliance upon

the Supreme Court’s decision in Mercer v. Hilliard, 249 N.C.

725, 107 S.E.2d 554 (1959), that an order overruling a plea in

bar is immediately appealable on substantial right grounds. In

Mercer, the defendants asserted res judicata as a bar to the

plaintiff’s personal injury claim. Id. at 726-27, 107 S.E.2d at

555. However, the trial judge allowed the plaintiff’s demurrer

to the defendants’ res judicata defense. Id. at 727, 107 S.E.2d

at 555. After stating that “‘[a] plea in bar is one that denies

the plaintiff’s right to maintain the action, and which, if

established, will destroy the action,’” id. at 728, 107 S.E.2d

at 556 (quoting McIntosh, N.C. Practice & Procedure, § 523

(1929)) (citing Brown v. E.H. Clement Co., 217 N.C. 47, 51, 6

S.E.2d 842, 845 (1940), and Solon Lodge Knights of Pythias Co.

v. Ionic Lodge Free Ancient & Accepted Masons, 245 N.C. 281,

287, 95 S.E.2d 921, 925 (1957)), the Supreme Court stated that

“[a]n order or judgment which sustains a demurrer to a plea in

bar affects a substantial right and a defendant may appeal

therefrom.” Id. (citing N.C. Gen. Stat. § 1-277 and Shelby v.

Charlotte Elec. Rwy., Light, and Power Co., 147 N.C. 537, 538,

61 S.E. 377, 378 (1908)). In other words, Defendant contends

that any decision to reject a defense that would defeat a claim

constitutes a plea in bar and that any order embodying such a
 -14-
decision is immediately appealable on substantial right grounds.

We do not find Defendant’s argument persuasive given the facts

before us in this case.

The concept of a plea in bar arose under and existed in

civil procedure systems that antedated the current North

Carolina Rules of Civil Procedure.

What then is a plea in bar? The word “bar”
has a peculiar and appropriate meaning in
law. In a legal sense it is a plea or
peremptory exception of a defendant,
sufficient to destroy the plaintiff’s
action, a special plea constituting a
sufficient answer to an action at law, and
so called because it barred–i.e., prevented–
the plaintiff from further prosecuting it
with effect, and, if established by proof,
defeated and destroyed the action
altogether.

Murchison Nat’l Bank v. Evans, 191 N.C. 535, 538, 132 S.E. 563,

564 (1926). According to the Supreme Court:

the following pleas have been held to be
pleas in bar: (1) Statute of Limitations.
Oldham v. Rieger, 145 N.C. 254, [58 S.E.
1091 [1907]. (2) Account stated. Kerr v.
Hicks, 129 N.C. 141[, 39 S.E. 197 (1901)];
[Kerr v. Hicks,] 131 N.C. 90[, 42 S.E. 532
(1902)]; Jones v. Wooten, 137 N.C. [421, 49
S.E. 915 (1905)]. (3) Failure to comply
with the provisions of a contract which are
conditions precedent to liability. Bank [of
Tarboro] v. Fidelity [& Deposit] Co., 126
N.C. [320, 35 S.E. 588 (1900)]. (4) Plea of
sole seizin by reason of adverse possession
of twenty years against a tenant in common.
But [a] plea of sole seizin which by its
very terms involves an accounting, is not a
good plea. Duckworth v. Duckworth, 144 N.C.
 -15-
620[, 57 S.E. 396 (1907)]. (5) Release.
McAuley v. Sloan, 173 N.C. [80, 91 S.E. 701
(1917)]. (6) Accord and satisfaction.
McAuley v. Sloan, 173 N.C. [80, 91 S.E. 701
(1917)]. (7) Estoppel by judgment. Jones v.
Beaman, 117 N.C. [259, 23 S.E. 248 (1895)].

Id.; see also in Mercer, 249 N.C. at 727-28, 107 S.E.2d at 555-

56 (describing the assertion of a res judicata defense as a plea

in bar). In view of the fact that a successful plea in bar

barred an action from moving forward, Scott Poultry Co. v.

Bryan, 272 N.C. 16, 19, 157 S.E.2d 693, 696 (1967) (stating that

“[t]he effect of a plea in bar is to destroy plaintiff’s

action”), such pleas played a role in earlier systems of civil

procedure similar to that currently filled by affirmative

defenses as that term is used in the North Carolina Rules of

Civil Procedure.4 In apparent recognition of that fact, certain

decisions of this Court handed down within the first decade

after the enactment of the North Carolina Rules of Civil

Procedure continued to make references to “pleas in bar” even
4
However, as should be obvious from an examination of the
list of pleas in bar set out in Murchison National Bank and the
non-exclusive list of affirmative defenses set out in N.C. Gen.
Stat. § 1A-1, Rule 8(c) (listing “accord and satisfaction,
arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure
of consideration, fraud, illegality, injury by fellow servant,
laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, truth in actions for defamation,
usury, waiver, and any other matter constituting an avoidance or
affirmative defense” as affirmative defenses), pleas in bar are
a subset of, rather than completely equivalent to, modern
affirmative defenses.
 -16-
though that expression does not appear in N.C. Gen. Stat. § 1A-

1, Rule 8. Taylor v. Bailey, 49 N.C. App. 216, 217, 271 S.E.2d

296, 297 (1980) (treating the affirmative defense of election of

remedies as a plea in bar), appeal dismissed, 301 N.C. 726, 274

S.E.2d 235 (1981); T. A. Loving Co. v. Latham, 20 N.C. App. 318,

319, 201 S.E.2d 516, 517 (1974) (stating that the “[d]efendants

filed answer which contained a number of affirmative defenses

constituting pleas in bar”); McKinney v. Morrow, 18 N.C. App.

282, 283, 196 S.E.2d 585, 586 (noting that the defendant was

allowed to “amend his answer to plead that release as an

affirmative defense in bar”), cert. denied, 283 N.C. 655, 197

S.E.2d 874 (1973). As a result, a plea in bar, like an

affirmative defense, represented something that the defendant in

a civil action was required to plead and prove. Lyon v. Shelter

Resources Corp., 40 N.C. App. 557, 560, 253 S.E.2d 277, 279

(1979) (citing N.C. Gen. Stat. § 1A-1, Rule 8(c); Price v.

Conley, 21 N.C. App. 326, 328, 204 S.E.2d 178, 180 (1974))

(stating that “[a] defense based on waiver or release is an

affirmative defense and, therefore, the defendant bears the

burden of proof”).

Assuming, without in any way deciding, that the legal

principle affording any party asserting a plea in bar against

which a demurrer has been sustained the right to seek immediate
 -17-
appellate relief has survived the enactment of the North

Carolina Rules of Appellate Procedure,5 we do not believe that

the principle upon which Defendant relies has any application in

this case. As a general proposition, “‘a defense which contests

one of the material allegations of the complaint is not an

affirmative defense since it involves an element of the

plaintiff’s prima facie case.’” Wallace v. Haserick, 105 N.C.

App. 315, 319, 412 S.E.2d 694, 695, disc. review denied, 331

N.C. 291, 417 S.E.2d 71 (1992) (quoting Shuford, North Carolina

Civil Practice and Procedure, § 8-7 (1988)). The argument that

Defendant was precluded from asserting by virtue of the trial

court’s decision to grant summary judgment in Plaintiff’s favor

in the second 18 March 2013 order involves, in essence, a denial

that the parties were ever legally married. As a general

proposition, a party to a void marriage does not have the rights

available to a person who has entered into a valid marriage.

Taylor v. Taylor, 321 N.C. 244, 249, 362 S.E.2d 542, 545-46

(1987) (holding that a “bigamous marriage is a nullity, with no

5
As we read the applicable decisional law, there is
substantial basis for questioning whether the principle upon
which Defendant relies remains universally valid with respect to
all defenses that were formerly treated as pleas in bar. E.g.,
Thompson v. Norfolk & S. Ry. Co., 140 N.C. App. 115, 121, 535
S.E.2d 397, 401, (2000) (holding that “an order denying a
party’s motion to dismiss based on a statute of limitation does
not effect a substantial right and is therefore not
appealable”).
 -18-
legal rights flowing from it”). For that reason, the statutory

provisions governing equitable distribution actions assume that

the only persons entitled to obtain an equitable distribution of

marital and divisible property are the parties to a valid

marriage. Thus, rather than constituting a plea in bar or even

an affirmative defense, the contention that the trial court

precluded Defendant from asserting in the second 18 March 2013

order amounted to the denial that an element of Plaintiff’s

equitable distribution claim ever existed. As a result, since

the argument that Defendant has been precluded from making does

not constitute an affirmative defense, much less a plea in bar,

Defendant is not entitled to an immediate appeal from the second

18 March 2013 order based on the principle set out in Mercer.

Secondly, Defendant argues that the second 18 March 2013

order affects a substantial right by creating a risk that

inconsistent judgments would be reached in the trial court.

According to Defendant, Plaintiff’s equitable distribution claim

and his counterclaim for an annulment based on Mr. Jones’ lack

of authority to perform the parties’ marriage ceremony are “so

intertwined that an adjudication of [his] counterclaim could

determine the outcome of [her] claim[].”6 In support of this

6
Defendant has not asserted in his brief any other basis for
challenging the validity of his marriage, such as his contention
that the parties never consummated their marriage, aside from
 -19-
assertion, Defendant relies on our decision in Bartlett v.

Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695-96 (1996),

disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997), in

which we allowed an interlocutory appeal from an order granting

summary judgment in favor of the defendant with respect to the

plaintiff’s negligence claim even though the defendant’s claim

for unpaid fees resulting from the provision of his services

remained undecided “[b]ecause the possibility of inconsistent

verdicts from two trials on the same issues exist[ed]” in cases

in which “‘there are overlapping factual issues between the

claim determined and any claims which have not yet been

determined because such overlap creates the potential for

inconsistent verdicts resulting from two trials on the same

factual issues.’” (internal quotation marks omitted) (quoting

Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674,

677 (1993)).

Although the legal principle upon which Defendant relies in

support of the second of his “substantial right” contentions

relating to the second 18 March 2013 order is certainly a valid

one, it has no application in this instance. In essence,

Defendant’s argument rests on the assumption that his

his contention that Mr. Jones lacked the authority to perform
their marriage ceremony, so we limit the discussion in the text
of this opinion to the contention that Defendant has actually
made.
 -20-
counterclaim for annulment was fully resolved in the second 18

March 2013 order. However, the second 18 March 2013 order did

not in any way determine that Defendant’s annulment claim lacked

validity. In fact, the trial court determined that there were

genuine issues of material fact concerning the extent to which

Mr. Jones was authorized to conduct the parties’ marriage

ceremony. Instead, the relevant provision of the second 18

March 2013 order simply precludes Defendant from asserting the

same facts upon which his annulment claim rests in response to

Plaintiff’s equitable distribution claim. As a result, since

the ruling with respect to Defendant’s contention that his

marriage to Plaintiff was not valid embodied in the second 18

March 2013 order is not inconsistent with Defendant’s assertion

that he has the right to have his marriage annulled based on Mr.

Jones’ lack of authority to conduct their marriage ceremony,

Defendant is not entitled to immediate appellate review of the

second 18 March 2013 order on substantial right grounds.

Finally, Defendant contends that, even if the second 18

March 2103 order did not affect a substantial right, that order

was appealable pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b).

However, Defendant has failed to identify any claim with respect

to which the trial court made a final decision in the second 18

March 2013 order. For example, the record clearly establishes
 -21-
that the trial court has not finally decided the merits of

Plaintiff’s equitable distribution claim. Although Defendant

contends that the second 18 March 2013 order “represent[s] a

final order on Defendant’s counterclaim for annulment,” that

contention is clearly without merit given that the trial court

has never made a determination concerning the merits of

Defendant’s annulment claim and, in fact, held that the record

disclosed the existence of genuine issues of material fact

concerning the extent to which Mr. Jones had the authority to

marry Plaintiff and Defendant. As we have already noted, the

trial court simply held that Defendant had waived the right to

assert those facts in opposition to Plaintiff’s equitable

distribution claim in light of the 6 April 2010 memorandum of

decision and the 6 May 2010 consent judgment. Thus, the trial

court lacked the authority to certify the second 18 March 2013

order for immediate review pursuant to N.C. Gen. Stat. § 1A-1,

Rule 54(b). As a result, since Defendant has not established

that he is entitled to immediate appellate review of the second

18 March 2013 order on any basis, we have no authority to reach

the merits of Defendant’s challenge to the trial court decisions

embodied in that order and must, instead, dismiss Defendant’s

attempted appeal from that order.

2. 4 June 2013 Order
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According to Defendant, the 4 June 2013 order is subject to

immediate appeal despite its interlocutory status on a number of

grounds. More specifically, Defendant contends that he is

entitled to an immediate appeal from the 4 June 2013 order on

the grounds that the order in question rejects a plea in bar,

creates a risk of inconsistent judgments, and has been certified

for immediate review pursuant to N.C. Gen. Stat. § 1A-1, Rule

54(b). Once again, we conclude that Defendant’s arguments lack

merit.7

As was the case with respect to his challenge to the second

18 March 2013 order, Defendant contends that the 4 June 2013

order affected a substantial right “to assert a defense and plea

in bar to Plaintiff’s claims.” Assuming, without deciding, that

orders rejecting pleas in bar are immediately appealable on the

basis of the substantial right doctrine, the 4 June 2013 order

did not reject a defense “that denie[d] [Plaintiff’s] right to

maintain the action, and which, if established, [would have]

destroy[ed] the action.” Mercer, 249 N.C. at 728, 107 S.E.2d at

556. On the contrary, even if Judge Brooks erred by entering a

consent judgment that did not accurately reflect the agreement

set out in the 6 April 2013 memorandum of decision, a question
7
As a result of the fact that we have not reached the merits
of Defendant’s challenges to the 4 June 2013 order, we express
no opinion about the extent to which those challenges have been
properly asserted or have any substantive validity.
 -23-
about which we express no opinion at this point, that fact would

simply invalidate the consent judgment rather than bar

Plaintiff’s equitable distribution claim. As a result, since

the trial court did not reject a plea in bar in the 4 June 2013

order, Defendant is not entitled to an immediate appeal from

that order based on the principle set out in Mercer.

Secondly, Defendant contends that he is entitled to an

immediate appeal from the 4 June 2013 order on the grounds that

the issues addressed and resolved in that order are intertwined

with other issues that remain to be resolved in this case. As

we have previously indicated, an interlocutory order affects a

substantial right in the event that there is a risk that the

failure to provide immediate appellate review creates a risk

that inconsistent judgments will result. However, we are unable

to see how a failure to consider the issues raised by

Defendant’s challenge to the 4 June 2013 order on appeal at this

time creates such a risk and Defendant has not satisfactorily

explained to us how such a result would come about. Simply put,

given that no decision has been reached with respect to the

merits of Defendant’s claim for annulment, a failure to consider

whether the 6 May 2010 consent judgment accurately reflects the

agreement between the parties embodied in the 6 April 2010
 -24-
memorandum of decision poses no risk that inconsistent decisions

will be made with respect to any matter at issue in this case.

Finally, Defendant argues that, in the event that he is not

entitled to an immediate appeal from the 4 June 2013 order on

substantial right grounds, he is entitled to obtain appellate

review of that order on an interlocutory basis as a result of

the trial court’s decision to certify the 4 June 2013 order for

immediate appeal. However, the trial court’s certification was

not effective to allow an immediate appeal pursuant to N.C. Gen.

Stat. § 1A-1, Rule 54(b), given that the 4 June 2013 order did

not finally resolve any claim between the parties. Although

Defendant contends that the 4 June 2013 order “represents” a

final judgment with respect to his annulment claim, the order in

question simply does not address, much less finally resolve, the

validity of Defendant’s annulment claim on the merits. Thus,

Defendant is not entitled to immediate appellate review of the 4

June 2013 order pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b).

As a result, given that none of the bases upon which Defendant

relies in support of his request for immediate appellate review

of the 4 June 2013 order have any validity, we must dismiss his

appeal from that order as well.

III. Conclusion
 -25-
Thus, for the reasons set forth above, we conclude that

Defendant’s appeal has been taken from two unappealable

interlocutory orders and is not properly before this Court. As

a result, Defendant’s appeal should be, and hereby is,

dismissed.

APPEAL DISMISSED.

Chief Judge MARTIN and Judge MCCULLOUGH concur.

Chief Judge MARTIN concurred in this opinion prior to 1

August 2014.