708 S.E.2d 215, 716 S.E.2d 215
No. COA10-864North Carolina Court of Appeals
Filed 18 January 2011 This case not for publication
Mecklenburg County No. 09 CVS 19875.
Appeal by plaintiff from order entered 19 February 2010 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 December 2010.
Johnston, Allison Hord, P.A., by Patrick E. Kelly and Kathleen K. Lucchesi, for plaintiff-appellant.
Poyner Spruill, LLP, by E. Fitzgerald Parnell, III, V. Stuart Couch, and Karen H. Chapman, for defendants-appellees.
MARTIN, Chief Judge.
Plaintiff Eliezer Marty Matos brought this action alleging claims for professional negligence and negligent misrepresentation against defendants The Hamel Law Firm, P.A.[1] and William F. Hamel. According to the Complaint filed 21 August 2009, plaintiff entered into a contract with Coy L. McManus and his wife, Margaret C.
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McManus, on or about 26 May 2005 to purchase 12.458 acres on a lot designated as Lot 7 in a map recorded in Book 43 on Page 685 of the Mecklenburg County Registry. Plaintiff alleged that he entered into a second contract with the McManuses on or about 17 April 2006 to purchase an additional 1.447 acres, which comprised “the remaining portion of Lot 7.” According to plaintiff, both contracts included a condition requiring that there “must be no restriction, easement, zoning or other governmental regulation that would prevent the reasonable use of [Lot 7] for residential or farm purposes.”
The McManuses conveyed the 12.458-acre tract on Lot 7 (the “First Tract”) to plaintiff by general warranty deed, which was recorded in the Mecklenburg County Registry on 14 July 2005, and conveyed the 1.447-acre tract on Lot 7 (the “Second Tract”) to plaintiff by a second general warranty deed, which was recorded in both the Mecklenburg County and Cabarrus County Registries on 24 August 2006. Defendants “acted as attorneys for [plaintiff] and provided legal services in connection with the[se] closings.”
In June 2005, before the McManuses conveyed the First Tract to plaintiff, the McManuses conveyed property adjacent to the Lot 7 tracts to another party by general warranty deed. The deed for the conveyance of this parcel — which was located in both Mecklenburg and Cabarrus Counties — was recorded in the Mecklenburg County Registry on 21 June 2005. However, plaintiff alleged that, in express contravention of the conditions set forth in the contracts to purchase the Lot 7 tracts, the deed recorded on 21 June 2005
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contained restrictive covenants that “purport[ed] to place restrictions upon Tracts 1 through 7” of the McManuses’ property limiting plaintiff’s ability to use or develop the Lot 7 properties for residential or farm use. Plaintiff alleged that defendants failed to “identify the duly-recorded express [r]estrictions contained in the out-conveyances of [the McManuses’ property] during required title searches or updates of title before closing” and failed to “identify and report the existence of the [r]estrictions to [plaintiff] or [plaintiff’s] title insurance company,” which “constitute[d] breaches of the [d]uty of [c]are that [defendants] owed to [plaintiff].”
Defendants moved to dismiss plaintiff’s action with prejudice under N.C.G.S. § 1A-1, Rule 12(b)(6) on the grounds that some, if not all, of the causes of action alleged in the Complaint had accrued beyond the period of limitations prescribed by N.C.G.S. § 1-15(c), and that plaintiff failed to mitigate his damages. Defendants also moved for summary judgment on the same grounds. After considering both motions, the trial court entered an order (1) allowing defendants’ motion for summary judgment against plaintiff’s claims arising from his purchase of the First Tract and dismissing those claims with prejudice, and (2) denying defendants’ remaining claims for summary judgment. After giving notice of appeal from the trial court’s 19 February 2010 order, plaintiff filed motions pursuant to N.C.G.S. § 1A-1, Rules 54 and 62(d) requesting that the trial court certify its 19 February 2010 order as immediately appealable and requesting that the court stay the
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remaining proceedings regarding the Second Tract. Defendants moved to dismiss the appeal. The trial court granted plaintiff’s motion for certification, stayed the proceedings pending this appeal, and denied defendants’ motion to dismiss.
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“A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Grp., Inc. v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). “Such a prohibition promotes judicial economy by preventing fragmentary appeals.” Id.; see also Veazey v. City of Durham, 231 N.C. 357, 363, 57 S.E.2d 377, 382 (“There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.”), reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).
Nevertheless, there are “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 N.C.R. Civ. P. 54(b)”; or “(2) if the trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.”CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 153 (1999) (internal quotation marks omitted). “[T]he burden is on the appellant `to present appropriate grounds for this Court’s acceptance of an
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interlocutory appeal and our Court’s responsibility to review those grounds.'” Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 685, 513 S.E.2d 598, 600 (1999) (quotin Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994)), appeal dismissed in part, disc. review denied, and cert. denied, 350 N.C. 836, 539 S.E.2d 293-94 (1999), aff’d per curiam, 351 N.C. 349, 524 S.E.2d 804 (2000).
In his brief, plaintiff asserts that the trial court’s 19 February 2010 order granting partial summary judgment is a final judgment and, thus, appeal lies of right to the Court of Appeals pursuant to N.C.G.S. § 7A-27(b). However, as we recognized above, “[a] grant of partial summary judgment . . . is an interlocutory order from which there is ordinarily no right of appeal.”Liggett Grp., Inc., 113 N.C. App. at 23, 437 S.E.2d at 677. Assuming without deciding that the trial court’s certification of the 19 February 2010 order as immediately appealable was appropriate, see Newcomb v. Cty. of Carteret, No. COA09-1254, slip op. at 24-26 (N.C. Ct. App. Nov. 2, 2010), the trial court made no findings in either the order granting partial summary judgment or in the order granting plaintiff’s request for certification that “there is no just reason for delay[ing]” this appeal. This Court has concluded that, when “the trial judge ma[kes] no . . . declaration in the judgment” that there was “no just reason for delay,” “[t]hrough Rule 54(b), no appeal lies,” because “Rule 54(b) expressly requires that this determination be stated in the judgment itself.” Brown v. Brown, 77 N.C. App. 206, 208, 334 S.E.2d 506, 508 (1985), disc.
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review denied, 315 N.C. 389, 338 S.E.2d 878 (1986); see also N.C. Gen. Stat. § 1A-1, Rule 54(b) (2009) (“When more than one claim for relief is presented in an action, . . . the court may enter a final judgment as to one or more but fewer than all of the claims . . . only if there is no just reason for delay and it is so determined in the judgment.” (emphasis added)). Thus, we conclude that no immediate appeal lies through N.C.G.S. § 1A-1, Rule 54(b) from the order granting partial summary judgment on the claims arising from the First Tract.
Alternatively, plaintiff suggests that the trial court’s order affects a substantial right and may be appealed pursuant to N.C.G.S. §§ 1-277 and 7A-27(d). However, plaintiff fails to provide argument in his brief identifying what, if any, substantial right would be lost if this Court declined to allow immediate review of the issues presented. “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, 115 N.C. App. at 380, 444 S.E.2d at 254. Because plaintiff has not presented any argument as to what substantial right would be lost if this appeal is not considered before the trial court renders its final judgment on all of the claims at issue in this matter, we dismiss this appeal.
Dismissed.
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Judges MCGEE and ERVIN concur.
Report per Rule 30(e).
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