Hancox v. Wingate Univ.

• Court: Court of Appeals of North Carolina
• Decided: March 4, 2014
• Docket: 13-1018
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1018 NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

BRADFORD SCOTT HANCOX, as Administrator of the ESTATE OF MISHAWN B. MILLER., Plaintiff

v. Union County No. 13 CVS 158 WINGATE UNIVERSITY; SMITH BROTHERS FARM, a General Partnership; KEITH SMITH, a General Partner; GRADY SMITH, a General Partner; and DONALD ERIC WATKINS, Defendants

Appeal by plaintiff from order entered 28 March 2013 by

Judge W. David Lee in Union County Superior Court. Heard in the

Court of Appeals 22 January 2014.

Michael A. Jones for plaintiff-appellant.

Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for defendant-appellee Wingate University.

DAVIS, Judge.

Bradford Scott Hancox (“Plaintiff”), the administrator of

the estate of Mishawn B. Miller (“Miller”), brings this

interlocutory appeal from the trial court’s order granting -2-

summary judgment in favor of Wingate University (“Wingate”).

After careful review, we conclude that Plaintiff has failed to

establish that his appeal implicates a substantial right.

Accordingly, we dismiss the appeal for lack of appellate

jurisdiction.

Factual Background

Miller was a recent high school graduate who was accepted

into Wingate for the 2010-11 academic year. Wingate invited

Miller to participate in its Early Academic Success Program

(“EASP”), which was held during the summer before the

participants’ freshman year and was designed to assist incoming

students in acclimating to college life.

On 14 August 2010, the EASP students were scheduled to

participate in a ropes course activity approximately five miles

from Wingate’s campus. Dr. Heather P. McDivitt (“Dr.

McDivitt”), an academic advisor and program coordinator for

EASP, determined that based on the program’s goal of introducing

students to college life, “it was appropriate to have the EASP

students ride with student mentors or carpool with fellow EASP

students to the ropes course.” In her affidavit, Dr. McDivitt

stated that the students “made their own arrangements for

transportation” to the ropes course and that she did not assign

drivers or riders. -3-

Miller drove himself and three fellow students to the ropes

course in his personal vehicle. While en route, Miller’s

vehicle collided with a truck owned by Smith Brothers Farm and

driven by Donald Eric Watkins (“Watkins”). Miller and one

passenger were killed, and the other two passengers sustained

serious injuries.

On 13 August 2012, Plaintiff filed suit against Wingate,

Smith Brothers Farm, Watkins, and Keith Smith and Grady Smith —

the two general partners of Smith Brothers Farm — alleging that

each party’s negligence proximately caused Miller’s death. On

23 January 2013, Wingate filed a motion for summary judgment,

and on 18 March 2013, Defendants Smith Brothers Farm, Keith

Smith, Grady Smith, and Watkins filed a joint summary judgment

motion.

By order entered on 28 March 2013, the trial court granted

summary judgment in favor of Wingate but denied the remaining

defendants’ motion, determining that “there are genuine issues

of material fact with respect to the plaintiff’s remaining

claims for relief against the defendants Smith Brothers Farm,

Keith Smith, Grady Smith and Donald Eric Watkins and that said

defendants are not entitled to judgment as a matter of law.”

Plaintiff gave timely notice of appeal. The sole issue raised

on appeal is whether the trial court erred in entering summary

judgment in favor of Wingate. -4-

Analysis

Before we can address the substantive issues presented in

Plaintiff’s appeal, we must determine whether appellate

jurisdiction exists over the appeal. Because the trial court’s

order granted summary judgment as to only one defendant,

Plaintiff’s claims against the remaining four defendants are

still pending and, therefore, this appeal is interlocutory. See

Myers v. Barringer, 101 N.C. App. 168, 172, 398 S.E.2d 615, 617

(1990) (“Summary judgment granted to some but not all defendants

is an interlocutory judgment since it does not dispose of the

case but leaves it for further action for the trial court in

order to settle and determine the entire controversy.” (citation

and internal quotation marks omitted)).

Because “[e]ntry of judgment for fewer than all the

defendants is not a final judgment . . . [such orders] may not

be appealed in the absence of certification pursuant to Rule

54(b) [of the North Carolina Rules of Civil Procedure] unless

the entry of summary judgment affects a substantial right.”

Camp v. Leonard, 133 N.C. App. 554, 557, 515 S.E.2d 909, 912

(1999). As the trial court did not certify the order granting

summary judgment in favor of Wingate for immediate appeal

pursuant to Rule 54(b), it is Plaintiff’s burden to show that a

substantial right would be jeopardized unless he is permitted to -5-

immediately appeal. Embler v. Embler, 143 N.C. App. 162, 166,

545 S.E.2d 259, 262 (2001).

It is well established that the appellant bears the burden of showing to this Court that the appeal is proper. . . . [W]hen an appeal is interlocutory, the appellant must include in its statement of grounds for appellate review “sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.”

Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338

(quoting N.C.R. App. P. 28(b)(4)), aff’d per curiam, 360 N.C.

53, 619 S.E.2d 502 (2005).

In his brief, Plaintiff acknowledges the interlocutory

nature of his appeal but states that the appeal “is taken on the

grounds that it is a case of first impression, or in the

alternative, that there should be an extension of the

application of current law to [the] case at bar.” However,

Plaintiff cites no legal authority, and we know of none,

supporting the proposition that the existence of appellate

jurisdiction over an interlocutory appeal is affected by the

novelty of the underlying issues contained therein.

Plaintiff’s only reference to the issue of whether this

appeal affects a substantial right is his bare assertion that

delaying the appeal may expose him to “the costly burden of

litigating substantially the same matter twice.” However,

Plaintiff has provided no specific argument nor cited to any -6-

case law to support this assertion. See Hoke Cty. Bd. of Educ. v.

State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (“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.”), disc. review denied, 363 N.C. 653,

686 S.E.2d 515 (2009).

Our prior caselaw has made clear 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 v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380,

444 S.E.2d 252, 254 (1994). Because Plaintiff has failed to

establish that a substantial right would be lost or prejudiced

unless an immediate appeal is allowed, we are required to

dismiss the appeal.

Conclusion

For the reasons set forth above, Plaintiff’s interlocutory

appeal is dismissed.

DISMISSED.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).