Jeffries v. Miller

• Court: Court of Appeals of North Carolina
• Decided: October 7, 2014
• Docket: 14-263
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 14-263 NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

HUBERT JEFFRIES, Plaintiff,

v. Forsyth County No. 12 CVS 1970 MERCEDES L. MILLER and EDWARD L. MILLER, Defendants.

Appeal by Plaintiff from order of dismissal without

prejudice entered 7 January 2014 by Judge Richard Stone in

Forsyth County Superior Court. Heard in the Court of Appeals 10

September 2014.

Plaintiff Hubert Jeffries, pro se.

No brief for Defendants.

STEPHENS, Judge.

Procedural History

This appeal arises from the denial of a motion by Plaintiff

Hubert Jeffries for summary judgment and the subsequent

dismissal without prejudice of his pro se complaint to quiet

title to a parcel of land in Forsyth County and to cancel a 2007 -2- deed conveying the land to Defendants Mercedes L. Miller and

Edward L. Miller. On 21 March 2012, Plaintiff filed this action,

alleging Defendants forged his signature on a general warranty

deed to property located at 3881 Northampton Road in Winston-

Salem. In their answer, Defendants denied any fraud and claimed

the transaction was actually conducted by Plaintiff’s wife,

Queenesther Jeffries, who is listed along with Plaintiff as

grantor on the deed in question and against whom Defendants had

already obtained a judgment for breach of contract.

Additionally, Defendants filed a Rule 12(b) motion to dismiss

for failure to state a claim upon which relief can be granted

and failure to join a necessary party.

After the court denied Defendants’ motion, and subsequent

attempts to reach a mediated settlement failed, Plaintiff filed

a motion for summary judgment. In support of his motion,

Plaintiff provided: (1) a copy of the allegedly forged deed; (2)

a copy of a letter from North Carolina Secretary of State Elaine

F. Marshall revoking the license of the notary public who

notarized the deed at issue after he failed to respond to an

unrelated complaint of forgery involving Plaintiff’s brother-in-

law, George T. Powell, Jr.; and (3) an affidavit restating the

allegations from Plaintiff’s original complaint that he had -3- never met Defendants and never made, signed, acknowledged, or

delivered the deed in question to them.

Following a hearing, the trial court determined, based on a

review of the pleadings and the arguments presented by

Defendants’ counsel, that genuine issues of material fact

existed and denied Plaintiff’s motion for summary judgment. In

response, Plaintiff and Powell, who is not an attorney, filed

motions objecting to the court’s decision, requesting a new

hearing on summary judgment and a jury trial, and demanding that

Defendants be sanctioned for “misleading” the court as to the

existence of a genuine issue of material fact, as well as

criminally prosecuted for forgery. At the ensuing pretrial

hearing, the court repeatedly advised Plaintiff to obtain

counsel, admonished Powell for his attempts to act as

Plaintiff’s attorney, and continued the matter for trial.

Plaintiff responded with a motion objecting to the continuance

and requesting disqualification of the presiding judge for

personal bias and prejudice based on her refusal to recognize

Powell as his “Power of Attorney.”

The matter was eventually scheduled for trial during the

court’s 6 January 2014 term. Plaintiff appeared pro se at

calendar call and was given notice in open court that trial -4- would begin on 7 January 2014. Nevertheless, Plaintiff failed to

appear for trial the following day. Instead, an “unknown person”

[presumably Powell] informed the court that Plaintiff could not

appear due to illness. Upon Defendants’ objection to the matter

being continued further, the court dismissed Plaintiff’s

complaint without prejudice for failure to appear and prosecute,

pursuant to Rule 41(b) of the North Carolina Rules of Civil

Procedure. Plaintiff gave timely notice of his intent to appeal.

Plaintiff’s Appeal

The core of Plaintiff’s pro se appeal seeks to challenge

the denial of his motion for summary judgment, based on what

appears to be a fundamental misapprehension of our State’s Rules

of Civil Procedure. Essentially, Plaintiff contends that because

Defendants did not answer his motion for summary judgment with

affidavits disproving his accusations of forgery, the trial

court erred as a matter of law, abused its discretion, and

deprived him of a fair and impartial hearing when it declined to

grant his motion. Plaintiff also argues that dismissal of his

complaint without prejudice deprived him of his right to a jury

trial, and that the trial court erred in refusing to allow

Powell to appear on Plaintiff’s behalf by exercising his “Power

of Attorney.” However, given the interlocutory nature of this -5- appeal, we lack jurisdiction to hear any of Plaintiff’s

arguments and must therefore dismiss.

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.” Cagle v. Teachy, 111 N.C.

App. 244, 247, 431 S.E.2d 801, 803 (1993). “There is generally

no right to appeal an interlocutory order.” N.C. Dep’t of

Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334

(1995). The rationale behind this rule is “to prevent

fragmentary, premature and unnecessary appeals by permitting the

trial court to bring the case to final judgment before it is

presented to the appellate courts.” Fraser v. Di Santi, 75 N.C.

App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315

N.C. 183, 337 S.E.2d 856 (1985).

“Orders which deny summary judgment are ordinarily

interlocutory and not appealable.” Harbin Yinhai Tech. Dev. Co.

v. Greentree Fin. Grp., Inc., 196 N.C. App. 615, 620, 677 S.E.2d

854, 858 (2009). Likewise, “[u]nless an exception applies, an

order of dismissal without prejudice is interlocutory.” Id.

(citation omitted). A party is only permitted to appeal from an

interlocutory order if one of two exceptions applies: first, -6- “where there has been a final determination of at least one

claim, and the trial court certifies there is no just reason to

delay the appeal,” or second, “if delaying the appeal would

prejudice a ‘substantial right.’” Liggett Grp., Inc. v. Sunas,

113 N.C. App. 19, 23–24, 437 S.E.2d 674, 677 (1993).

In the present case, Plaintiff fails to grasp the

interlocutory nature of his appeal and provides no explanation

for how it meets either of the two established exceptions. In

any event, we find that neither exception applies to either of

the orders Plaintiff seeks to challenge. On the one hand,

neither the order denying summary judgment nor the order of

dismissal without prejudice constituted a final determination of

Plaintiff’s claim. On the other hand, because Rule 41(b) of our

State’s Rules of Civil Procedure provides that a new action may

be brought based on the same claim if commenced within one year

of a dismissal without prejudice, Plaintiff is still free to

refile his claim, and has therefore suffered no prejudice to any

substantial right. Accordingly, we dismiss.

DISMISSED

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).