KNC Techs., LLC v. Tutton

• Court: Supreme Court of North Carolina
• Decided: June 17, 2022
• Docket: 277A21
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-73

No. 277A21

Filed 17 June 2022

KNC TECHNOLOGIES, LLC

v. ERIC TUTTON and i-TECH SECURITY AND NETWORK SOLUTIONS, LLC

Appeal pursuant to N.C.G.S. § 7A-27(a)(3) from an order and opinion on

plaintiff’s motion for partial summary judgment and defendants’ motion for summary

judgment entered on 8 April 2021 by Judge Gregory P. McGuire, Special Superior

Court Judge for Complex Business Cases, in Superior Court, Davidson County, after

the case was designated a mandatory complex business case by the Chief Justice

pursuant to N.C.G.S. § 7A-45.4(a). Heard in the Supreme Court on 9 May 2022.

Matthew W. Georgitis, Alexander L. Turner, and R. Matthew Van Sickle for plaintiff-appellant.

D. Stuart Punger Jr. for defendant-appellees.

BARRINGER, Justice.

¶1 In this matter, the appellant KNC Technologies, LLC noted an appeal as of

right of an interlocutory order but has failed to show that the order affects a

substantial right or otherwise satisfies the requirements for an appeal as of right to

this Court from an interlocutory order of a business court judge. See N.C.G.S. § 7A-

27(a)(3) (2021). Accordingly, we dismiss the appeal. KNC TECHS., LLC V. TUTTON

Opinion of the Court

¶2 Pursuant to N.C.G.S. § 7A-27(a)(3), an appeal of right lies to this Court from

an interlocutory order of a business court judge only if it “[a]ffects a substantial right,”

“[i]n effect determines the action and prevents a judgment from which an appeal

might be taken,” “[d]iscontinues the action,” or “[g]rants or refuses a new trial.”

N.C.G.S. § 7A-27(a)(3). “It is the appellant’s burden to present appropriate grounds

for . . . 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[.]”

Hanesbrands Inc. v. Fowler, 369 N.C. 216, 218 (2016) (alterations in original) (quoting

Johnson v. Lucas, 168 N.C. App. 515, 518, aff’d per curiam, 360 N.C. 53 (2005)).

Additionally, “the North Carolina Rules of Appellate Procedure require that the

appellant’s brief contain a ‘statement of the grounds for appellate review,’ which must

allege ‘sufficient facts and argument to support appellate review on the ground that

the challenged order affects a substantial right.’ ” Id. at 219 (quoting N.C. R. App. P.

28(b)(4)).

¶3 The appellant must present more than a bare assertion that the order affects

a substantial right, in effect determines the action and prevents a judgment from

which an appeal might be taken, discontinues the action, or grants or refuses a new

trial. See id.; see also N.C. R. App. P. 28(b)(4). Appellants must demonstrate why the

order has the claimed effect under N.C.G.S. § 7A-27(a)(3). See Hanesbrands, 369 N.C.

at 219; see also N.C. R. App. P. 28(b)(4). If an appellant fails to carry its burden to KNC TECHS., LLC V. TUTTON

present appropriate grounds for an interlocutory appeal as of right, this Court will on

its own motion dismiss the appeal. Waters v. Qualified Pers., Inc., 294 N.C. 200, 201

(1978) (“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.” (footnote omitted)); cf. Hanesbrands, 369 N.C.

at 218 (“An appeal from an interlocutory order will be dismissed as fragmentary and

premature unless the order affects some substantial right and will work injury to

appellant if not corrected before appeal from final judgment.” (cleaned up)).

¶4 KNC Technologies acknowledges that it has appealed an interlocutory order.

However, KNC Technologies’ basis for this Court’s review is limited to two

statements: (1) that the interlocutory order affects a substantial right because the

trial court “erroneously denied” its partial summary judgment motion on various

claims and (2) that the order in effect determines the action and prevents a judgment

from which an appeal might be taken because “[t]he denial of summary judgment

prevents entry of a final order on those claims from which [KNC Technologies] might

appeal.” This is a bare assertion, which is clearly not sufficient to satisfy an

appellant’s burden to present appropriate grounds for an interlocutory appeal as of

right to this Court. Therefore, we dismiss KNC Technologies’ appeal.

DISMISSED.