Lawson v. Lawson

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-1119
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. 13-1119 NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

JOHN WALTER LAWSON, MARGARET (MEG) ELIZABETH LAWSON DARLING,

Plaintiffs,

v. Forsyth County No. 12 CVS 8369 HEIDI CAVANAGH LAWSON, JACQUELINE CAVANAGH HUGHES, MARK CAPRISE, DEPUTY SHERIFF P.J. MULLEN, DEPUTY SHERIFF MICHAEL BRANNON, CORPORAL CLAYBOURN HARPER, SHERIFF WILLIAM SCHATZMAN, HARTFORD INSURANCE, LIEUTENANT MAX CREASON, CHIEF KENNETH GAMBLE,

Defendants.

Appeal by plaintiffs from order entered 24 April 2013 by

Judge William Z. Wood, Jr., in Forsyth County Superior Court.

Heard in the Court of Appeals 4 February 2014.

Margaret (Meg) Elizabeth Lawson Darling, and John Walter Lawson, pro se.

Lonnie G. Albright, Asst. Forsyth County Attorney, for defendant-appellees.

STEELMAN, Judge. -2- Where plaintiffs fail to acknowledge that their appeal is

interlocutory, and do not allege the existence of a substantial

right that would be jeopardized by failing to address their

claims now, their appeal is dismissed.

I. Factual and Procedural Background

On 11 June 2010 warrants were issued by the Cary Police

Department in Wake County, charging plaintiff John Lawson with

assault on a female and violation of a N.C. Gen. Stat. § 50B

protective order. Both offenses were allegedly committed against

John Lawson’s ex-wife, Heidi Lawson. On 12 June 2010 these

warrants were transmitted electronically to the Forsyth County

Sheriff’s Department. After the warrants were verified, Deputies

Mullen and Brannon arrested John Lawson at the Forsyth County

home of his sister, plaintiff Margaret Darling.

On 21 December 2012, plaintiffs filed an unverified pro se

complaint against defendants Heidi Lawson; Jacqueline Hughes,

Heidi Lawson’s sister; Mark Caprise, Heidi Lawson’s boyfriend;

Forsyth County Sheriff William Schatzman; Forsyth County Deputy

Sheriffs P.J. Mullen and Michael Brannon, and Corporal Claybourn

Harper in their official and individual capacities; Kernersville

Police Chief Kenneth Gamble; Lieutenant Max Creason, in his

official and individual capacity; and Hartford Insurance, which

plaintiffs alleged had “provided a surety bond pursuant to N.C. -3- General Statute § 162-8” “covering [the] actions of Sheriff

Schatzman[.]” The complaint generally alleged that (1) there was

an ongoing domestic dispute between John Lawson and Heidi

Lawson; (2) on 10 June 2010 Hughes falsely reported to law

enforcement authorities that John Lawson had raped Heidi Lawson;

(3) on 12 June 2010, Kernersville Police Lieutenant Max Creason,

Heidi Lawson’s brother-in-law, called the Forsyth County

Sheriff’s Department and falsely reported that the Kernersville

Police Department was issuing warrants for John Lawson’s arrest

and that John Lawson could be located at the home of his sister,

Meg Darling; (4) on 12 June 2010 Forsyth County Deputies Mullen

and Brannon “forced their way into the Darling residence” and

arrested John Lawson; (5) the deputies did not verify the

existence of arrest warrants before arresting John Lawson; that

(6) no warrants “ever existed” that were issued by the

Kernersville Police Department for John Lawson’s arrest, and;

(7) that Heidi Lawson had sought “to deprive John Lawson of his

constitutional right to be a father,” that the other defendants

“through their actions or lack there[of]” had “exhibited an

agreement with Heidi Lawson” and that “collectively the

defendants [should] be held accountable for all of the actions

referenced [in the complaint] pursuant to the existence of a

civil conspiracy[.]” -4- Plaintiffs’ complaint is somewhat confusing, but appears to

assert the following claims:

1. Claims against Schatzman, Mullen, Brannon, Harper, Gamble, Creason, Heidi Lawson, Hughes, and Caprise under 42 U.S.C. § 1983 for violation of plaintiffs’ rights under the 4th and 14th Amendments to the United States Constitution.

2. Claims under the N.C. Constitution, §§ 19, 20, 21, 35, and 36, against Creason, Harper, Brannon, Mullen, Schatzman, and Gamble “in their official capacities.”

3. Claims for malicious prosecution against Heidi Lawson, Hughes, Creason, Harper, Mullen, and Brannon.

4. Claims for abuse of process against Heidi Lawson, Hughes, Creason, Harper, Mullen, Brannon, and Caprise.

5. Claims for defamation, libel, and slander against Heidi Lawson and Caprise.

6. Claims for intentional infliction of emotional distress against Heidi Lawson, Hughes, and Caprise.

7. Claim for negligent infliction of emotional distress against Heidi Lawson.

8. Claim for civil obstruction of justice against Heidi Lawson.

9. Claim by Darling for intrusion upon seclusion against Heidi Lawson, Hughes, Creason, Mullen, and Brannon.

10. Claim for negligent retention and supervision against Schatzman and Gamble.

11. Claim “on the bond” against Schatzman and Hartford Insurance. -5-

The present appeal concerns only defendants Schatzman,

Mullen, Brannon, and Harper (“the Forsyth County defendants”).

On 23 January 2013 the Forsyth County defendants filed an answer

denying the material allegations of plaintiffs’ complaint and

raising various defenses, including failure to state a claim

upon which relief could be granted, governmental immunity, and

an allegation that Hartford Insurance had not provided a surety

bond under N.C. Gen. Stat. § 162-8 or N.C. Gen. Stat. § 153A-

435.1 On 24 January 2013 the Forsyth County defendants filed a

request for admissions from plaintiffs. On 22 February 2013,

plaintiffs admitted that they had been provided with copies of

the warrants for John Lawson’s arrest that were issued by the

Cary Police Department on 10 June 2010. Although plaintiffs

“concede[d] to the existence of the arrest warrants” they did

not seek to amend their complaint to reflect the existence of

warrants for John Lawson’s arrest.

On 7 March 2013, the Forsyth County defendants filed a

motion for summary judgment, based on governmental immunity, and

supported by plaintiffs’ responses to the request for

1 Plaintiffs later admitted that Hartford Insurance Company had not provided a surety bond for the Forsyth County Sheriff’s Department. Plaintiffs filed a motion to amend their complaint to allege a different surety but did not obtain a ruling on the motion, and did not appeal from the dismissal of their claim against Hartford, which is not a party to this appeal. -6- admissions, copies of the arrest warrants issued for John

Lawson, and affidavits of Forsyth County employees averring that

Hartford Insurance had not provided a surety bond for the

Forsyth County Sheriff’s Department and setting out the timeline

of the events surrounding John Lawson’s arrest. In response,

plaintiffs submitted a written brief and a transcript

purportedly made from a video that Darling recorded during John

Lawson’s arrest.2

A hearing was conducted on the Forsyth County defendants’

summary judgment motion on 15 and 18 April 2013. Plaintiffs did

not submit affidavits, depositions, or any other sworn testimony

in opposition to the motion. On 24 April 2013 the trial court

entered an order granting summary judgment in favor of the

Forsyth County defendants, and dismissing plaintiffs’ claim

against Hartford Insurance.

Plaintiffs appealed from entry of summary judgment in favor

of the Forsyth County defendants.

II. Interlocutory Nature of Appeal

“A judgment is either interlocutory or the final

determination of the rights of the parties.” N.C. Gen. Stat.

§1A-1, Rule 54(a). “A final judgment is one which disposes of 2 Because the transcript begins at a point when John Lawson is talking with the deputies, it does not shed any light on the circumstances under which the deputies entered Darling’s house and made contact with John Lawson. -7- the cause as to all the parties, leaving nothing to be

judicially determined between them in the trial court. 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.” Veazey v. City of Durham, 231

N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).

Plaintiffs admit on appeal that the “order entered 24 April

2013 [was] interlocutory” at the time it was entered, but

contend that after the order was entered “[a]ll of the remaining

claims as to all of the parties of 12 CVS 8369” were “judicially

disposed of with subsequent orders.” In support of this

assertion, plaintiffs allege that on 6 March 2013 Judge Stuart

Albright dismissed plaintiffs’ claims against defendants

Creason, Gamble, and Caprise pursuant to N.C. R. Civ. P.

12(b)(6) for failure to state a claim upon which relief may be

granted, and dismissed plaintiffs’ § 42 U.S.C. 1983 claim

against Hughes, and that on 3 September 2013 Judge Anderson

Cromer granted summary judgment with respect to plaintiffs’

remaining claims against Hughes. Plaintiffs include the summary

judgment order in favor of Hughes in an appendix to their brief,

but have not included in the record the orders entered by Judge

Albright, citing instead to unsworn statements of defense -8- counsel at the summary judgment hearing. We note that “appellate

review is conducted on the basis of the information contained in

the record developed before the trial court,” Cunningham v. City

of Greensboro, 212 N.C. App. 86, 98, 711 S.E.2d 477, 485-86

(2011), and that “appellate courts in this State are bound by

the record as certified and can judicially know only what

appears of record.” Vassey v. Burch, 301 N.C. 68, 74, 269 S.E.2d

137, 141 (1980). Furthermore, if we assume that plaintiffs

omitted the dismissal orders through an oversight, we

nonetheless conclude that this appeal is interlocutory because

the record is devoid of any information concerning the

disposition of plaintiffs’ claims against Heidi Lawson.

Plaintiffs contend that “Heidi Lawson has never answered

the complaint and plaintiff-appellants filed for an entry of

default against her on 7 September 2013.” However, plaintiffs

did not include their motion for entry of default in the record,

and do not provide any information concerning whether default

was entered, or whether judgment was entered, whether Heidi

Lawson moved to set aside an entry or judgment of default, or

whether any other procedural or substantive matters pertaining

to the current status of plaintiffs’ claims against Heidi Lawson

remain unresolved. Because the record contains no basis upon -9- which to conclude that these claims have been resolved, we hold

that plaintiffs’ appeal is interlocutory.

“Generally, there is no right of immediate appeal from

interlocutory orders and judgments.” Goldston v. American Motors

Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “[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 this case, plaintiffs have failed to

acknowledge that their appeal remains interlocutory due to the

outstanding claims against Heidi Lawson, and offer no argument

concerning why they are entitled to immediate appeal on the

basis of a substantial right. “It is not the duty of this Court

to construct arguments for or find support for appellant’s right

to appeal from an interlocutory order; instead, the 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, -10- 444 S.E.2d 252, 254 (1994) (citing GLYK and Assoc. v. Railway

Co., 55 N.C. App. 165, 170-71, 285 S.E.2d 277, 280 (1981)).

We hold that plaintiffs have attempted to appeal from an

interlocutory order and that their appeal must be dismissed.

DISMISSED.

Judges McGEE and ERVIN concur.

Report per Rule 30(e).