An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-453 NORTH CAROLINA COURT OF APPEALS Filed: 4 February 2014 RANDY AARON INGLE, Plaintiff
Catawba County v. No. 12 CVD 2053
AMANDA B. INGLE, Defendant
Appeal by plaintiff from order entered 16 January 2013 by
Judge Gregory R. Hayes in Catawba County District Court. Heard
in the Court of Appeals 24 October 2013.
Crowe & Davis, P.A., by H. Kent Crowe, for Plaintiff.
Sigmon, Isenhower & Barkley, by C. Randall Isenhower, for Defendant.
ERVIN, Judge.
Plaintiff Randy Aaron Ingle appeals from an order setting
aside a judgment of absolute divorce and authorizing the
consideration of certain claims advanced by Defendant Amanda B.
Ingle. On appeal, Plaintiff contends that the trial court erred
by determining that Defendant had made an appearance in the case
sufficient to preclude the entry of a default judgment, that
Plaintiff had failed to adequately state a claim for absolute
divorce, and that an earlier judgment should be set aside and -2- further proceedings conducted for the purpose of considering
various claims that Defendant wishes to assert. After careful
consideration of Plaintiff’s challenges to the trial court’s
order in light of the record and the applicable law, we conclude
that Plaintiff's appeal has been taken from an unappealable
interlocutory order and should be dismissed.
I. Factual Background
Plaintiff and Defendant were married on 16 June 1985 and
lived together as husband and wife until they separated on 30
April 2011. On 27 July 2012, Plaintiff filed a complaint
seeking an absolute divorce. A summons and Plaintiff’s
complaint were served on Defendant on 31 July 2012.
Shortly after service was effectuated upon Defendant, the
parties had a number of discussions for the purpose of
attempting to resolve all outstanding issues arising from the
dissolution of their marriage, including a division of their
property. During the 30 day period after the date upon which
Defendant was served with the summons and complaint, Plaintiff
sent a number of text messages to Defendant addressing the
possibility that the two of them could reach agreement with
respect to these issues. As a result of these communications,
Defendant did not file an answer or other responsive pleading -3- prior to the expiration of the time for making such a filing
specified in N.C. Gen. Stat. § 1A-1, Rule 12(a)(1).
On 13 September 2012, the trial court heard Plaintiff’s
request for an absolute divorce. Defendant had not been
notified that the 13 September 2012 hearing would be held and
did not appear at that hearing. On the same date, the trial
court entered a judgment granting an absolute divorce.
On 7 December 2012, Defendant filed a motion seeking relief
from the divorce judgment pursuant to N.C. Gen. Stat. § 1A-1,
Rules 59 and 60, and authorization to file an attached draft
responsive pleading that asserted counterclaims for post-
separation support, alimony, equitable distribution, injunctive
relief, and attorney’s fees. On 4 January 2013, Defendant filed
an amended motion for relief from the divorce judgment in which
she added an allegation that Plaintiff’s complaint failed to
adequately state a claim upon which relief could be granted
predicated on the theory that Plaintiff had failed to allege
that the parties had lived continuously separate and apart from
each other for one year prior to the filing of the complaint.
On 4 January 2013, Defendant filed an affidavit setting out her
account of the events that led to the entry of the judgment and
attached certain text messages that she had received from
Plaintiff. -4- Defendant’s motion for relief from the divorce judgment was
heard before the trial court on 8 January 2013. On 16 January
2013, the trial court entered an order concluding that
“Defendant’s failure to file a response was due to reasonable
mistake, inadvertence, surprise and excusable neglect”; that
“insufficient notice was given to the Defendant prior to the
entry of said divorce”; and that “jurisdictional requirements
were not met with regard to the allegations in the Complaint by
the Plaintiff” and ordering that the divorce judgment be “set
aside” and “have no force or effect,” allowing the filing of
Defendant’s proposed responsive pleading, and allowing Plaintiff
thirty days within which to file a response to Defendant’s
counterclaims. On 24 January 2013, Plaintiff filed a motion to
dismiss Defendant’s counterclaims for lack of subject matter
jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)
and noted an appeal to this Court from the 16 January 2013
order.
II. Substantive Legal Analysis
“It is well established in this jurisdiction that if an
appealing party has no right of appeal, an appellate court on
its own motion should dismiss the appeal even though the
question of appealability has not been raised by the parties
themselves.” Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d -5- 431, 433 (1980) (citing Dickey v. Herbin, 250 N.C. 321, 325, 108
S.E.2d 632, 635 (1959), and Rogers v. Brantley, 244 N.C. 744,
745, 94 S.E.2d 896, 896 (1956)). As a result, even though
Defendant has not raised any challenge to our jurisdiction over
this case, the first question that we must address and resolve
is whether Plaintiff’s appeal is properly before this Court.
“Judicial judgments, orders and decrees are either
‘interlocutory or the final determination of the rights of the
parties.’” Bailey, 301 N.C. at 208, 270 S.E.2d at 433 (citing
N.C. Gen. Stat. § 1A-1, Rule 54(a)). “A final judgment is one
which disposes of the cause as to all the parties, leaving
nothing to be judicially determined between them in the trial
court,” while “[a]n 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.” Veazey v. City of
Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)
(citations omitted). The order at issue here, in which the
trial court vacated the divorce judgment and authorized further
proceedings relating to the counterclaims that Defendant wished
to assert against Plaintiff, is clearly not an appealable final
order, since “‘further action by the trial court is necessary to
settle and determine the entire controversy between the -6- parties.’” Banner v. Hatcher, 124 N.C. App. 439, 441, 477
S.E.2d 249, 250 (1996) (quoting First American Savings & Loan
Assoc. v. Satterfield, 87 N.C. App. 160, 162, 359 S.E.2d 812,
813 (1987)); see also Bradley v. Bradley, 206 N.C. App. 249,
253, 697 S.E.2d 422
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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. COA13-453 NORTH CAROLINA COURT OF APPEALS Filed: 4 February 2014 RANDY AARON INGLE, Plaintiff
Catawba County v. No. 12 CVD 2053
AMANDA B. INGLE, Defendant
Appeal by plaintiff from order entered 16 January 2013 by
Judge Gregory R. Hayes in Catawba County District Court. Heard
in the Court of Appeals 24 October 2013.
Crowe & Davis, P.A., by H. Kent Crowe, for Plaintiff.
Sigmon, Isenhower & Barkley, by C. Randall Isenhower, for Defendant.
ERVIN, Judge.
Plaintiff Randy Aaron Ingle appeals from an order setting
aside a judgment of absolute divorce and authorizing the
consideration of certain claims advanced by Defendant Amanda B.
Ingle. On appeal, Plaintiff contends that the trial court erred
by determining that Defendant had made an appearance in the case
sufficient to preclude the entry of a default judgment, that
Plaintiff had failed to adequately state a claim for absolute
divorce, and that an earlier judgment should be set aside and -2- further proceedings conducted for the purpose of considering
various claims that Defendant wishes to assert. After careful
consideration of Plaintiff’s challenges to the trial court’s
order in light of the record and the applicable law, we conclude
that Plaintiff's appeal has been taken from an unappealable
interlocutory order and should be dismissed.
I. Factual Background
Plaintiff and Defendant were married on 16 June 1985 and
lived together as husband and wife until they separated on 30
April 2011. On 27 July 2012, Plaintiff filed a complaint
seeking an absolute divorce. A summons and Plaintiff’s
complaint were served on Defendant on 31 July 2012.
Shortly after service was effectuated upon Defendant, the
parties had a number of discussions for the purpose of
attempting to resolve all outstanding issues arising from the
dissolution of their marriage, including a division of their
property. During the 30 day period after the date upon which
Defendant was served with the summons and complaint, Plaintiff
sent a number of text messages to Defendant addressing the
possibility that the two of them could reach agreement with
respect to these issues. As a result of these communications,
Defendant did not file an answer or other responsive pleading -3- prior to the expiration of the time for making such a filing
specified in N.C. Gen. Stat. § 1A-1, Rule 12(a)(1).
On 13 September 2012, the trial court heard Plaintiff’s
request for an absolute divorce. Defendant had not been
notified that the 13 September 2012 hearing would be held and
did not appear at that hearing. On the same date, the trial
court entered a judgment granting an absolute divorce.
On 7 December 2012, Defendant filed a motion seeking relief
from the divorce judgment pursuant to N.C. Gen. Stat. § 1A-1,
Rules 59 and 60, and authorization to file an attached draft
responsive pleading that asserted counterclaims for post-
separation support, alimony, equitable distribution, injunctive
relief, and attorney’s fees. On 4 January 2013, Defendant filed
an amended motion for relief from the divorce judgment in which
she added an allegation that Plaintiff’s complaint failed to
adequately state a claim upon which relief could be granted
predicated on the theory that Plaintiff had failed to allege
that the parties had lived continuously separate and apart from
each other for one year prior to the filing of the complaint.
On 4 January 2013, Defendant filed an affidavit setting out her
account of the events that led to the entry of the judgment and
attached certain text messages that she had received from
Plaintiff. -4- Defendant’s motion for relief from the divorce judgment was
heard before the trial court on 8 January 2013. On 16 January
2013, the trial court entered an order concluding that
“Defendant’s failure to file a response was due to reasonable
mistake, inadvertence, surprise and excusable neglect”; that
“insufficient notice was given to the Defendant prior to the
entry of said divorce”; and that “jurisdictional requirements
were not met with regard to the allegations in the Complaint by
the Plaintiff” and ordering that the divorce judgment be “set
aside” and “have no force or effect,” allowing the filing of
Defendant’s proposed responsive pleading, and allowing Plaintiff
thirty days within which to file a response to Defendant’s
counterclaims. On 24 January 2013, Plaintiff filed a motion to
dismiss Defendant’s counterclaims for lack of subject matter
jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)
and noted an appeal to this Court from the 16 January 2013
order.
II. Substantive Legal Analysis
“It is well established in this jurisdiction that if an
appealing party has no right of appeal, an appellate court on
its own motion should dismiss the appeal even though the
question of appealability has not been raised by the parties
themselves.” Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d -5- 431, 433 (1980) (citing Dickey v. Herbin, 250 N.C. 321, 325, 108
S.E.2d 632, 635 (1959), and Rogers v. Brantley, 244 N.C. 744,
745, 94 S.E.2d 896, 896 (1956)). As a result, even though
Defendant has not raised any challenge to our jurisdiction over
this case, the first question that we must address and resolve
is whether Plaintiff’s appeal is properly before this Court.
“Judicial judgments, orders and decrees are either
‘interlocutory or the final determination of the rights of the
parties.’” Bailey, 301 N.C. at 208, 270 S.E.2d at 433 (citing
N.C. Gen. Stat. § 1A-1, Rule 54(a)). “A final judgment is one
which disposes of the cause as to all the parties, leaving
nothing to be judicially determined between them in the trial
court,” while “[a]n 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.” Veazey v. City of
Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950)
(citations omitted). The order at issue here, in which the
trial court vacated the divorce judgment and authorized further
proceedings relating to the counterclaims that Defendant wished
to assert against Plaintiff, is clearly not an appealable final
order, since “‘further action by the trial court is necessary to
settle and determine the entire controversy between the -6- parties.’” Banner v. Hatcher, 124 N.C. App. 439, 441, 477
S.E.2d 249, 250 (1996) (quoting First American Savings & Loan
Assoc. v. Satterfield, 87 N.C. App. 160, 162, 359 S.E.2d 812,
813 (1987)); see also Bradley v. Bradley, 206 N.C. App. 249,
253, 697 S.E.2d 422, 425 (2010) (stating that “our courts have
consistently held that appeals from orders allowing a Rule 60
motion are interlocutory”). Thus, the order that has been
presented for our review in this case is clearly interlocutory
in nature.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). Our
refusal to consider appeals taken from interlocutory orders is
intended “to prevent fragmentary and premature appeals that
unnecessarily delay the administration of justice and to ensure
that the trial divisions fully and finally dispose of the case
before an appeal can be heard.” Bailey, 301 N.C. at 209, 270
S.E.2d at 434 (citing Waters v. Qualified Personnel, Inc., 294
N.C. 200, 207, 240 S.E.2d 338, 343 (1978), and City of Raleigh
v. Edwards, 234 N.C. 528, 529, 67 S.E.2d 669, 671 (1951)).
However, “‘immediate appeal of interlocutory orders and
judgments is available in at least two instances’: when the
trial court certifies, pursuant to N.C. [Gen. Stat.] § 1A–1, -7- Rule 54(b), that there is no just reason for delay of the
appeal; and when the interlocutory order affects a substantial
right under N.C. [Gen. Stat.] §§ 1–277(a) and 7A–27(d)(1).”
Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d
770, 773 (2009) (quoting Sharpe v. Worland, 351 N.C. 159, 161-
62, 522 S.E.2d 577, 579 (1999)). As a result of the fact that
the trial court did not certify the order from which Plaintiff
seeks to appeal for immediate review pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 54(b), and could not have properly done so given
that the challenged order did not constitute a final judgment as
to either a claim or a party, we lack the authority to reach the
merits of Plaintiff’s challenge to the trial court’s order
unless the challenged order affects a substantial right.
A substantial right is “one which will clearly be lost or
irremediably adversely affected if the order is not reviewable
before final judgment.” Blackwelder v. Dept. of Human
Resources, 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983).
“[T]he 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 v. Raleigh Oaks Joint Venture, 115 N.C.
App. 377, 380, 444 S.E.2d 252, 254 (1994). In order to make the
required showing, “[t]he appellant[] must present more than a -8- bare assertion that the order affects a substantial right; [he]
must demonstrate why the order affects a substantial right.”
Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679
S.E.2d 512, 516, disc. review denied, 363 N.C. 653, 686 S.E.2d
515 (2009). If the appellant fails to make the required
showing, his or her appeal is subject to dismissal. Allen v.
Stone, 161 N.C. App. 519, 521, 588 S.E.2d 495, 497 (2003).
A careful review of Plaintiff’s brief establishes that he
has failed to advance “sufficient facts and argument to support
appellate review on the ground that the challenged order affects
a substantial right.” N.C. R. App. P. 28(b)(4). To put it
simply, Plaintiff has failed to identify any substantial right
of which he would be deprived in the absence of immediate
appellate review. Aside from the fact that the “avoidance of a
rehearing or trial is not a ‘substantial right’ entitling a
party to an immediate appeal,” Blackwelder, 60 N.C. App. at 335,
299 S.E.2d at 780, “[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, 115 N.C. App. at
380, 444 S.E.2d at 254. As a result, given that Plaintiff has
failed to establish that we have jurisdiction over his challenge
to the trial court’s order, we conclude that Plaintiff’s appeal -9- has been taken from an unappealable interlocutory order and
should be dismissed.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Plaintiff’s appeal has been taken from an unappealable
interlocutory order and is not properly before us. As a result,
Plaintiff’s appeal should be, and hereby is, dismissed.
DISMISSED.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).