An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-146
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
CENTURY FIRE PROTECTION, LLC,
Plaintiff,
v. Catawba County
No. 12 CVS 1788
CURTIS NEAL MAUSER HEIRS;
STEPHEN MAUSER; BETTY MAUSER
SCIPONE; NADEAN M. YODER; J.C.
FAW; and MELVIN HOWELL, d/b/a
“Club Miami”
Defendants.
Appeal by plaintiff from order entered 24 June 2013 by
Judge Timothy S. Kincaid in Catawba County Superior Court.
Heard in the Court of Appeals 22 May 2014.
Kenison, Dudley & Crawford, LLC, by Thomas E. Dudley, III,
for plaintiff-appellant.
Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Stephen
L. Palmer, for defendant-appellees.
DAVIS, Judge.
Century Fire Protection, LLC (“Plaintiff”) appeals from the
trial court’s order awarding attorneys’ fees pursuant to N.C.
Gen. Stat. § 44A-35 to the Curtis Neal Mauser Heirs, Stephen
Mauser, and Betty Mauser Scipone (collectively “the Mauser
-2-
Defendants”). After careful review, we conclude that
Plaintiff’s appeal is interlocutory, does not implicate a
substantial right, and must be dismissed.
Factual Background
On 27 June 2012, Plaintiff filed a complaint in Catawba
County Superior Court against the Mauser Defendants, Nadean M.
Yoder, J.C. Faw, and Melvin Howell d/b/a “Club Miami”
(collectively “Defendants”). In its complaint, Plaintiff
alleged that it had provided “fire protection materials and
labor” pursuant to a contract it had entered into with J.C. Faw
and Melvin Howell, who were acting as agents for the remaining
Defendants. The complaint further alleged that Plaintiff had
“fully performed its obligations under the contract and provided
materials and labor . . . in the amount of $52,525.00” but that
Defendants had “unreasonably refused to pay Plaintiff’s claim.”
In its complaint, Plaintiff sought recovery under breach of
contract and quantum meruit theories and sought to enforce its
claim of lien against Defendants’ real property.
On 3 August 2012, the Mauser Defendants filed an amended
answer and motion to dismiss under Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure or, in the alternative, a
motion for summary judgment pursuant to Rule 56. The Mauser
-3-
Defendants’ motion was heard by the Honorable Timothy S. Kincaid
in Catawba County Superior Court on 28 May 2013. The trial
court concluded that (1) J.C. Haw and Melvin Howell did not have
the authority to act as agents for the Mauser Defendants; and
(2) there was no contract between Plaintiff and the Mauser
Defendants. Accordingly, on 19 June 2013, the trial court
entered an order granting summary judgment in favor of the
Mauser Defendants as to all of Plaintiff’s claims. The trial
court also ordered Plaintiff to pay $7,860.12 in attorneys’ fees
by order entered 24 June 2013. Plaintiff appeals from the 24
June 2013 order awarding attorneys’ fees to the Mauser
Defendants.
Analysis
The trial court’s 19 June 2013 partial summary judgment
order made clear that summary judgment was being granted only in
favor of the Mauser Defendants. As such, the order does not
dispose of Plaintiff’s claims against Nadean M. Yoder, J.C. Faw,
and Melvin Howell. When summary judgment is granted in favor of
some but not all defendants, the case is not resolved as to all
of the parties, and orders entered prior to such resolution are
interlocutory. See Mecklenburg Cty. v. Simply Fashion Stores,
Ltd., 208 N.C. App. 664, 667, 704 S.E.2d 48, 51 (2010) (“An
-4-
order is interlocutory when it does not dispose of the entire
case but instead, leaves outstanding issues for further action
at the trial level.”), appeal dismissed and disc. review denied,
365 N.C. 187, 707 S.E.2d 231 (2011); 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)).
In this case, there is no indication in the record that
Plaintiff’s claims against the remaining Defendants have been
resolved. Nor is there any indication that Plaintiff has
voluntarily dismissed those claims. See Hernandez v. Coldwell
Banker Sea Coast Realty, ___ N.C. App. ___, ___, 735 S.E.2d 605,
608 (2012) (explaining that when plaintiff voluntarily dismissed
all claims against remaining defendants, “the trial court’s
grant of partial summary judgment became a final order and [was]
properly before us”), disc. review denied, 366 N.C. 436, 736
S.E.2d 192 (2013). Thus, because the claims asserted in
Plaintiff’s complaint have yet to be resolved in their entirety,
-5-
the order awarding attorneys’ fees to the Mauser Defendants is
interlocutory.
Therefore, we must determine whether we have jurisdiction
over Plaintiff’s interlocutory appeal.
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 [North Carolina Rule
of Civil Procedure] 54(b) or (2) if the
trial court’s decision deprives the
appellant of a substantial right which would
be lost absent immediate review.
Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C.
App. 360, 363, 533 S.E.2d 827, 830 (citation and internal
quotation marks omitted), disc. review denied, 353 N.C. 262, 546
S.E.2d 93 (2000).
Because the trial court did not certify its order awarding
attorneys’ fees for immediate appeal pursuant to Rule 54(b), it
is Plaintiff’s burden to show that a substantial right would be
jeopardized unless an immediate appeal is permitted. 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
-6-
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).
Plaintiff’s brief fails to acknowledge the interlocutory
nature of the appeal and, therefore, presents no argument that
the order granting attorneys’ fees in favor of the Mauser
Defendants affects a substantial right.1 As such, Plaintiff has
failed to satisfy its burden of establishing that a substantial
right would be lost or prejudiced unless an immediate appeal is
allowed. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.
App. 377, 380, 444 S.E.2d 252, 254 (1994) (“It is not the duty
of this Court to construct arguments for or find support for
[an] appellant’s right to appeal from an interlocutory order . .
. .”). Accordingly, we dismiss the appeal.
Conclusion
For the reasons set forth above, Plaintiff’s interlocutory
appeal is dismissed.
DISMISSED.
Judges HUNTER, JR. and ERVIN concur.
1
Instead, Plaintiff’s brief incorrectly states that it is
appealing from a final judgment.
-7-
Report per Rule 30(e).