VARUGHESE v. DEUTSCHE BANK NATIONAL TRUST, COA11-133 (N.C.App. 8-2-2011)

714 S.E.2d 530

No. COA11-133North Carolina Court of Appeals
Filed 2 August 2011 This case not for publication

Orange County No. 09 CVS 1037.

Appeal by plaintiffs from order entered 16 July 2010 by Judge Lucy Noble Inman in Superior Court, Orange County. Heard in the Court of Appeals 25 May 2011.

The Peterkin Law Firm, by Timothy J. Peterkin, for plaintiff-appellants.
Womble Carlyle Sandridge Rice, by Johnny M. Loper and Amanda G. Ray, for defendant-appellee Deutsche Bank National Trust Company.

STROUD, Judge.

On 12 February 2010, plaintiffs filed a second amended complaint for unfair and deceptive trade practices and misrepresentation against defendants Deutsche Bank National Trust (“Deutsche Bank”), Home Rescue Programs, Inc. (“Home

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Rescue”), and SJP Group, Inc. (“SJP”) and unfair debt collection against defendant Deutsche Bank. On 7 July 2010, defendant Deutsche Bank filed a motion to dismiss plaintiff’s second amended complaint. On 16 July 2010, the trial court granted defendant Deutsche Bank’s motion to dismiss with prejudice. Plaintiffs appeal.

Though not addressed by the parties, “whether an appeal is interlocutory presents a jurisdictional issue, and this Court has an obligation to address the issue sua sponte.” Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 392, 651 S.E.2d 261, 263 (2007) (citation, quotation marks, and brackets omitted). “As a general rule, a party may properly appeal only from a final order, which disposes of all the issues as to all parties[.]” Honeycutt v. Honeycutt, ___ N.C. App. ___, ___, 701 S.E.2d 689, 693 (2010). “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. An interlocutory order is generally not immediately appealable.” Bullard v. Tall House Bldg. Co., 196 N.C. App. 627, 637, 676 S.E.2d 96, 103 (2009) (citations and quotation marks omitted). Here, Home Rescue and SJP are still defendants in this action. Plaintiffs’

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own brief admits that the trial court has yet to “settle and determine the entire controversy[,]” id., as it requests this Court to “allow Deutsche Bank to continue as a Defendant in this action still pending before the Orange County Courts.”

An interlocutory order is subject to immediate appeal only if (1) the order is final as to some but not all of the claims or parties, and the trial court certifies the case for appeal pursuant to Rule 54(b) of the Rules of Civil Procedure, or (2) the trial court’s decision deprives the appellant of a substantial right that will be lost absent immediate review.

Gregory v. Penland, 179 N.C. App. 505, 509, 634 S.E.2d 625, 628 (2006). “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 those grounds.”Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). In this case, the trial court did not certify the case for appeal nor have plaintiffs argued that a substantial right has been impaired. Accordingly, plaintiffs have not carried their “burden to present appropriate grounds for” appellate review. Id. As such, we dismiss plaintiffs’ interlocutory appeal.

DISMISSED.

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Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.

Report per Rule 30(e).

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