Opinion of the Court
does not affect a substantial right. For the following reasons, we dismiss plaintiff’s
appeal.
I. Background
¶2 Plaintiff is a North Carolina limited liability company formed for the purposes
of developing a residential subdivision known as Greenbrier Place. Plaintiff filed a
complaint against defendants on 12 October 2017, asserting claims of negligence,
negligent misrepresentation, breach of contract, unfair and deceptive trade practices,
fraud, and constructive fraud. In the complaint, plaintiff alleged that on
20 August 2015, defendants produced and provided a “Probable Development Costs
Estimate” to Cherry Construction Company, Inc. (“Cherry Construction”) acting as
plaintiff’s agent. The estimate concerned the development of a forty-three lot
Greenbrier Place residential neighborhood and included an estimate in the amount
of $1,066,259.84. Plaintiff purchased the land for development on 29 December 2015.
Plaintiff alleged that on or around February 2016, defendants provided plaintiffs
with an updated “Summary of Development Costs” estimating total costs of
$818,337.51 for twenty eight of the forty-three proposed lots, reflecting an increase
“by a minimum amount of $190,472.80[.]”
¶3 Defendant Michael W. Baldwin (“Baldwin”) filed an answer and third-party
complaint on 18 December 2017. Defendant Baldwin Design Consultants, P.A.
(“Baldwin Design Consultants”) filed counterclaims on 15 July 2019.
¶4 On 26 July 2019, plaintiff filed a response to Baldwin Design Consultants’
counterclaims which included affirmative defenses and a motion to dismiss the
counterclaims for failure to state a claim upon which relief could be granted.
¶5 On 19 November 2019, defendants filed a motion for partial summary
judgment as to plaintiff’s claims for unfair and deceptive trade practices, fraud, and
constructive fraud. On 27 November 2019, plaintiff filed a motion in opposition
seeking summary judgment on all six of plaintiff’s claims as well as Baldwin Design
Consultant’s counterclaims.
¶6 The matter came on for hearing on 9 December 2019 in Pitt County Superior
Court, Judge Foster presiding.
¶7 On 16 March 2020, the trial court entered an order granting defendants’
motion for partial summary judgment and denying plaintiff’s motion for summary
judgment and motion in opposition. The order did not provide certification for appeal
pursuant to North Carolina Rules of Civil Procedure Rule 54(b).
¶8 Plaintiff filed written notice of appeal on 14 April 2020.
II. Discussion
¶9 Plaintiff contends the trial court erred in granting defendants’ partial motion
for summary judgment. Before addressing plaintiff’s arguments, we must address
defendants’ motion to dismiss plaintiff’s appeal as interlocutory.
¶ 10 “ ‘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.’ ” Hanesbrands Inc. v. Fowler, 369
N.C. 216, 218, 794 S.E.2d 497, 499 (2016) (quoting Veazey v. City of Durham, 231
N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Review of an interlocutory ruling is proper
if the trial court certifies the case for appeal pursuant to North Carolina Rules of Civil
Procedure Rule 54(b), or if the ruling deprives the appellant of a substantial right
that will be lost absent immediate review. N.C. Gen. Stat. §§ 1-277(a), 7A-27(b)(3)
(2019). “The appellants must present more than a bare assertion that the order
affects a substantial right; they must demonstrate why the order affects a substantial
right.” Hoke Cty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512,
516 (2009) (emphasis in original).
¶ 11 Our Supreme Court has determined that a “substantial right is ‘a legal right
affecting or involving a matter of substance as distinguished from matters of form: a
right materially affecting those interests which [one] is entitled to have preserved
and protected by law: a material right.’ ” Gilbert v. N.C. State Bar, 363 N.C. 70, 75,
678 S.E.2d 602, 605 (2009) (alteration in original) (quoting Oestreicher v. Am. Nat’l
Stores, Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)).
¶ 12 The inconsistent verdicts doctrine is a subset of the substantial rights doctrine
and is “often misunderstood.” Shearon Farms Townhome Owners Ass’n II, Inc. v.
Shearon Farms Dev., LLC, 272 N.C. App. 643, 646, 847 S.E.2d 229, 233 (2020), disc.
review denied, 377 N.C. 566, 858 S.E.2d 284 (2021). An appellant is required to show
“that the same factual issues are present in both trials and that [appellants] will be
prejudiced by the possibility that inconsistent verdicts may result.” Hien Nguyen v.
Taylor, 200 N.C. App. 387, 391, 684 S.E.2d 470, 473-74 (2009) (citing Moose v. Nissan
of Statesville, 115 N.C. App. 423, 426, 444 S.E.2d 694, 697 (1994)). Avoiding separate
trials on different issues does not affect a substantial right. J & B Slurry Seal Co. v.
Mid-South Aviation, Inc., 88 N.C. App. 1, 7, 362 S.E.2d 812, 816 (1987). Additionally,
“[t]he mere fact that claims arise from a single event, transaction, or occurrence does
not, without more, necessitate a conclusion that inconsistent verdicts may occur
unless all of the affected claims are considered in a single proceeding.” Hamilton v.
Mortg. Info. Servs., Inc., 212 N.C. App. 73, 80, 711 S.E.2d 185, 190 (2011).
¶ 13 “It is the appellant’s burden to present appropriate grounds for this Court’s
acceptance of an interlocutory appeal, . . . and not the duty of this Court to construct
arguments for or find support for appellant’s right to appeal[.]” Johnson v. Lucas,
168 N.C. App. 515, 518, 608 S.E.2d 336, 338, aff’d, 360 N.C. 53, 619 S.E.2d 502 (2005)
(citation omitted). “Where the appellant fails to carry the burden of making such a
showing to the court, the appeal will be dismissed.” Id. (citing Jeffreys v. Raleigh
Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)).
¶ 14 Plaintiff cites Carcano v. JBSS, LLC, 200 N.C. App. 162, 684 S.E.2d 41 (2009)
to support application of the inconsistent verdict doctrine. In Carcano, this Court
found that the plaintiffs demonstrated the risk of an inconsistent verdict because two
facts—whether “defendants caused plaintiffs’ damages by falsely representing that
‘JBSS, LLC,’ validly existed as an LLC and by inducing plaintiffs to invest in the
business”—would likely be determinative of all claims and that two juries could reach
different outcomes on these overlapping factual issues. Carcano, 200 N.C. App. at
168, 684 S.E.2d at 47.
¶ 15 In the case sub judice, plaintiff argues that the trial court’s order affects a
substantial right because there are factual issues common to all claims, including
whether defendants caused plaintiff’s damages “by falsely representing that all of the
costs of developing the residential subdivision project were included in the PDC
Estimates[.]” Plaintiff also raises factual issues related to a vegetative buffer
required by city code, whether defendants should have included disclaimers or
exclusions of costs not reflected in the PDC estimates, and whether defendants should
have obtained updated subcontractor bids for the estimates rather than relying on
data from prior projects.
¶ 16 Defendants argue that plaintiff’s remaining claims for negligence, negligent
misrepresentation, and breach of contract require different proof than the unfair and
deceptive trade practices and fraud claims disposed of by the trial court. This Court
has held that negligence claims require different proof than claims for unfair and
deceptive trade practices or fraud. See Ausley v. Bishop, 133 N.C. App. 210, 218, 515
S.E.2d 72, 78 (1999) (claim of fraud differs from claim of negligence); Noble v. Hooters
of Greenville (NC), LLC, 199 N.C. App. 163, 172, 681 S.E.2d 448, 455 (2009) (unfair
and deceptive trade practices violation requires more than negligence). This Court
has also recognized “that actions for unfair or deceptive trade practices are distinct
from actions for breach of contract and that a mere breach of contract, even if
intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.
[Gen. Stat.] § 75-1.1.” Branch Banking & Tr. Co. v. Thompson, 107 N.C. App. 53, 62,
418 S.E.2d 694, 700 (1992) (citations omitted). Additionally, failure to perform under
the terms of a contract, standing alone, does not support a claim of fraud. Hoyle v.
Bagby, 253 N.C. 778, 781, 117 S.E.2d 760, 762 (1961) (“It is the general rule that an
unfulfilled promise cannot be made the basis for an action for fraud.”).
¶ 17 Although plaintiff presents several facts from which the claims arise, plaintiff
has failed to carry the burden of showing that the inconsistent verdict doctrine
applies. Plaintiff’s remaining claims require different proof than the claims resolved
on summary judgment, and accordingly plaintiff has failed to identify common facts
that are determinative of all claims. Because plaintiff has failed to show that a
substantial right has been affected, we grant defendants’ motion to dismiss plaintiff’s
appeal.
III. Conclusion
¶ 18 For the foregoing reasons, we dismiss plaintiff’s appeal.
DISMISSED.
Judges CARPENTER and GRIFFIN concur.