An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 14-263
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
HUBERT JEFFRIES,
Plaintiff,
v. Forsyth County
No. 12 CVS 1970
MERCEDES L. MILLER
and EDWARD L. MILLER,
Defendants.
Appeal by Plaintiff from order of dismissal without
prejudice entered 7 January 2014 by Judge Richard Stone in
Forsyth County Superior Court. Heard in the Court of Appeals 10
September 2014.
Plaintiff Hubert Jeffries, pro se.
No brief for Defendants.
STEPHENS, Judge.
Procedural History
This appeal arises from the denial of a motion by Plaintiff
Hubert Jeffries for summary judgment and the subsequent
dismissal without prejudice of his pro se complaint to quiet
title to a parcel of land in Forsyth County and to cancel a 2007
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deed conveying the land to Defendants Mercedes L. Miller and
Edward L. Miller. On 21 March 2012, Plaintiff filed this action,
alleging Defendants forged his signature on a general warranty
deed to property located at 3881 Northampton Road in Winston-
Salem. In their answer, Defendants denied any fraud and claimed
the transaction was actually conducted by Plaintiff’s wife,
Queenesther Jeffries, who is listed along with Plaintiff as
grantor on the deed in question and against whom Defendants had
already obtained a judgment for breach of contract.
Additionally, Defendants filed a Rule 12(b) motion to dismiss
for failure to state a claim upon which relief can be granted
and failure to join a necessary party.
After the court denied Defendants’ motion, and subsequent
attempts to reach a mediated settlement failed, Plaintiff filed
a motion for summary judgment. In support of his motion,
Plaintiff provided: (1) a copy of the allegedly forged deed; (2)
a copy of a letter from North Carolina Secretary of State Elaine
F. Marshall revoking the license of the notary public who
notarized the deed at issue after he failed to respond to an
unrelated complaint of forgery involving Plaintiff’s brother-in-
law, George T. Powell, Jr.; and (3) an affidavit restating the
allegations from Plaintiff’s original complaint that he had
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never met Defendants and never made, signed, acknowledged, or
delivered the deed in question to them.
Following a hearing, the trial court determined, based on a
review of the pleadings and the arguments presented by
Defendants’ counsel, that genuine issues of material fact
existed and denied Plaintiff’s motion for summary judgment. In
response, Plaintiff and Powell, who is not an attorney, filed
motions objecting to the court’s decision, requesting a new
hearing on summary judgment and a jury trial, and demanding that
Defendants be sanctioned for “misleading” the court as to the
existence of a genuine issue of material fact, as well as
criminally prosecuted for forgery. At the ensuing pretrial
hearing, the court repeatedly advised Plaintiff to obtain
counsel, admonished Powell for his attempts to act as
Plaintiff’s attorney, and continued the matter for trial.
Plaintiff responded with a motion objecting to the continuance
and requesting disqualification of the presiding judge for
personal bias and prejudice based on her refusal to recognize
Powell as his “Power of Attorney.”
The matter was eventually scheduled for trial during the
court’s 6 January 2014 term. Plaintiff appeared pro se at
calendar call and was given notice in open court that trial
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would begin on 7 January 2014. Nevertheless, Plaintiff failed to
appear for trial the following day. Instead, an “unknown person”
[presumably Powell] informed the court that Plaintiff could not
appear due to illness. Upon Defendants’ objection to the matter
being continued further, the court dismissed Plaintiff’s
complaint without prejudice for failure to appear and prosecute,
pursuant to Rule 41(b) of the North Carolina Rules of Civil
Procedure. Plaintiff gave timely notice of his intent to appeal.
Plaintiff’s Appeal
The core of Plaintiff’s pro se appeal seeks to challenge
the denial of his motion for summary judgment, based on what
appears to be a fundamental misapprehension of our State’s Rules
of Civil Procedure. Essentially, Plaintiff contends that because
Defendants did not answer his motion for summary judgment with
affidavits disproving his accusations of forgery, the trial
court erred as a matter of law, abused its discretion, and
deprived him of a fair and impartial hearing when it declined to
grant his motion. Plaintiff also argues that dismissal of his
complaint without prejudice deprived him of his right to a jury
trial, and that the trial court erred in refusing to allow
Powell to appear on Plaintiff’s behalf by exercising his “Power
of Attorney.” However, given the interlocutory nature of this
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appeal, we lack jurisdiction to hear any of Plaintiff’s
arguments and must therefore dismiss.
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.” Cagle v. Teachy, 111 N.C.
App. 244, 247, 431 S.E.2d 801, 803 (1993). “There is generally
no right to appeal an interlocutory order.” N.C. Dep’t of
Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334
(1995). The rationale behind this rule is “to prevent
fragmentary, premature and unnecessary appeals by permitting the
trial court to bring the case to final judgment before it is
presented to the appellate courts.” Fraser v. Di Santi, 75 N.C.
App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315
N.C. 183, 337 S.E.2d 856 (1985).
“Orders which deny summary judgment are ordinarily
interlocutory and not appealable.” Harbin Yinhai Tech. Dev. Co.
v. Greentree Fin. Grp., Inc., 196 N.C. App. 615, 620, 677 S.E.2d
854, 858 (2009). Likewise, “[u]nless an exception applies, an
order of dismissal without prejudice is interlocutory.” Id.
(citation omitted). A party is only permitted to appeal from an
interlocutory order if one of two exceptions applies: first,
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“where there has been a final determination of at least one
claim, and the trial court certifies there is no just reason to
delay the appeal,” or second, “if delaying the appeal would
prejudice a ‘substantial right.’” Liggett Grp., Inc. v. Sunas,
113 N.C. App. 19, 23–24, 437 S.E.2d 674, 677 (1993).
In the present case, Plaintiff fails to grasp the
interlocutory nature of his appeal and provides no explanation
for how it meets either of the two established exceptions. In
any event, we find that neither exception applies to either of
the orders Plaintiff seeks to challenge. On the one hand,
neither the order denying summary judgment nor the order of
dismissal without prejudice constituted a final determination of
Plaintiff’s claim. On the other hand, because Rule 41(b) of our
State’s Rules of Civil Procedure provides that a new action may
be brought based on the same claim if commenced within one year
of a dismissal without prejudice, Plaintiff is still free to
refile his claim, and has therefore suffered no prejudice to any
substantial right. Accordingly, we dismiss.
DISMISSED
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).