An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-516
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
ROBERT CARPENTER and TAMMY
CARPENTER, Individually and TAMMY
CARPENTER as Administrator of the
Estate of MONIQUE L. CARPENTER,
Plaintiffs,
v. Guilford County
No. 10 CVS 10123
WILLIE McKINNEY, Individually and
jointly and severally with WINDHAM
HEATING AND AIR CONDITIONING,
INC., Individually and jointly and
severally with OLD REPUBLIC HOME
PROTECTION COMPANY, INC.,
Individually and jointly and
severally with PAUL EDWARD
WINDHAM, Individually and D/B/A
WINDHAM HEATING & AIR,
Defendants.
Appeal by plaintiffs from order entered 24 January 2013 by
Judge John O. Craig, III in Guilford County Superior Court.
Heard in the Court of Appeals 23 September 2013.
Roderick T. McIver for plaintiffs-appellants.
Moore & Van Allen PLLC, by Joshua D. Lanning and Melinda L.
Vervais, for defendant-appellee Old Republic Home
Protection Company, Inc.
GEER, Judge.
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Plaintiffs Robert and Tammy Carpenter, individually, and
Tammy Carpenter as administrator of the Estate of Monique L.
Carpenter, appeal from the trial court's order granting
defendant Old Republic Home Protection Company, Inc.'s ("Old
Republic") motion for summary judgment. Because the summary
judgment order is interlocutory and the record contains neither
a certification under Rule 54(b) of the Rules of Civil Procedure
nor any indication that a substantial right will be lost in the
absence of an immediate appeal, we dismiss plaintiffs' appeal.
Facts
On 14 November 2008, Monique Carpenter and Darryl Gregory
died from carbon monoxide poisoning resulting from defects in
the heating and ventilation system in Mr. Gregory's home. Mr.
Gregory leased the home from Willie McKinney who had a home
warranty contract with Old Republic. Several weeks prior to 14
November 2008, Mr. McKinney filed a warranty claim with Old
Republic regarding the malfunctioning heating and ventilation
system. On 12 November 2008, Old Republic sent its authorized
service provider, contractor Paul Edgar Windham, doing business
as Windham Heating & Air, to inspect the air conditioner and
furnace at Mr. Gregory's residence. Although Mr. Windham noted
defects with the furnace, he did not make any repairs or
replacements.
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On 21 September 2010, plaintiffs filed suit (1) against Mr.
McKinney alleging negligent failure to maintain the leased
premises in a safe and habitable manner and negligent repair;
(2) against Mr. Windham alleging professional negligence, unfair
and deceptive practices, and punitive damages; and (3) against
Old Republic alleging negligent retention of Mr. Windham, unfair
and deceptive practices, and punitive damages.
Defendant Old Republic filed a motion for summary judgment
on 21 December 2012. The trial court entered an order on 24
January 2013 granting the motion for summary judgment and
dismissing all of plaintiffs' claims against Old Republic.
Plaintiffs appealed the summary judgment order to this Court.
Discussion
Initially, we must address whether this court has
jurisdiction to hear this appeal. The summary judgment order
resolved only plaintiffs' claims against one defendant, Old
Republic. Based on the record filed in this Court, it appears
that plaintiffs' claims against defendants Willie McKinney, Paul
Edward Windham, and Windham Heating & Air are still pending.
The order, therefore, is interlocutory. See Veazey v. City of
Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) ("An
interlocutory order is one made during the pendency of an
action, which does not dispose of the case, but leaves it for
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further action by the trial court in order to settle and
determine the entire controversy.").
"Generally, there is no right of immediate appeal from
interlocutory orders and judgments." Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,
an interlocutory order "is immediately appealable if (1) the
order is final as to some claims or parties, and the trial court
certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is
no just reason to delay the appeal, or (2) the order deprives
the appellant of a substantial right that would be lost unless
immediately reviewed." Myers v. Mutton, 155 N.C. App. 213, 215,
574 S.E.2d 73, 75 (2002). "[I]t is the appellant's burden to
present appropriate grounds for this Court's acceptance of an
interlocutory appeal[.]" Jeffreys v. Raleigh Oaks Joint
Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994).
Rule 28(b)(4) of the Rules of Appellate Procedure requires
the appellant's brief to contain a "statement of the grounds for
appellate review" and "[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." Plaintiffs' statement of the grounds for
appellate review simply states:
Plaintiff's [sic] appeal is from the Order
of the Superior Court that granted
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Defendant's Motion for Summary Judgment, and
affects a substantial right from which
appeal might be taken, pursuant to
N.C.G.S.§7A-27(d)(1)and (2) [sic].
Thus, plaintiffs implicitly acknowledge that the appeal is
interlocutory. The summary judgment order does not include a
Rule 54(b) certification and, therefore, the only possible basis
for jurisdiction is, as plaintiffs have stated, the existence of
a substantial right that would be lost absent immediate review.
Plaintiffs do not, however, set forth any facts or provide any
argument as to why the order affects a substantial right.
It is well established that "[i]t 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, 115
N.C. App. at 380, 444 S.E.2d at 254. Instead, "[w]here the
appellant fails to carry the burden of making . . . a showing to
the court [that appellate jurisdiction exists], the appeal will
be dismissed." Johnson v. Lucas, 168 N.C. App. 515, 518, 608
S.E.2d 336, 338, aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502
(2005). Accord Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at
254 (holding appellant failed to satisfy burden and dismissing
appeal where "[appellant] presented neither argument nor
citation to show this Court that [appellant] had the right to
appeal the order dismissing its counterclaims"). Accordingly,
this appeal is dismissed.
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Dismissed.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).