MDT Pers., LLC v. APH Contr'rs, Inc.

• Court: Court of Appeals of North Carolina
• Decided: March 18, 2014
• Docket: 13-802
• Status: Unpublished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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-802 NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

MDT PERSONNEL, LLC, Plaintiff,

v. Guilford County No. 12 CVS 3555 APH CONTRACTORS, INC. d/b/a APH, INC., WILD BUILDING CONTRACTORS, INC., and CINCINNATI INSURANCE COMPANY, Defendants.

WILD BUILDING CONTRACTORS, INC., Cross-Claim Plaintiff,

v.

APH CONTRACTORS, INC. d/b/a APH, INC., Cross-Claim Defendant.

APH CONTRACTORS, INC. d/b/a APH, INC., Cross-Claim Plaintiff,

WILD BUILDING CONTRACTORS, INC., and CINCINNATI INSURANCE COMPANY, Cross-Claim Defendants.

Appeal by defendant/cross-claim defendant/cross-claim

plaintiff from judgment entered 31 December 2012 and order -2- entered 6 March 2013 by Judge Patrice A. Hinnant in Guilford

County Superior Court. Heard in the Court of Appeals 21

November 2013.

No brief filed on behalf of plaintiff-appellee.

Robinson, Bradshaw & Hinson, P.A., by R. Steve DeGeorge and Kate E. Payerle, for defendant, cross-claim defendant, cross-claim plaintiff-appellant APH Contractors, Inc. d/b/a APH, Inc.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Kevin S. Joyner, for defendant, cross-claim plaintiff, cross-claim defendant-appellee Wild Building Contractors, Inc. and defendant, cross-claim defendant-appellee Cincinnati Insurance Company.

GEER, Judge.

Defendants APH Contractors, Inc. doing business as APH,

Inc. and Wild Building Contractors, Inc. asserted cross-claims

against each other. APH appeals from the trial court's judgment

awarding Wild Building damages on its breach of contract cross-

claim against APH and ordering that APH recover nothing on its

cross-claims against Wild Building and defendant/cross-claim

defendant Cincinnati Insurance Company. APH also appeals the

trial court's order denying APH's motion for a new trial.

Based on the record on appeal submitted to this Court, we

are unable to determine if the judgment and order appealed by

APH constitute an immediately appealable final judgment and -3- order rather than an interlocutory judgment and order. Since

APH has failed to demonstrate that this appeal involves a final

judgment and has further failed to argue that any interlocutory

appeal affects a substantial right that would be jeopardized

absent review prior to a final determination as to all claims,

we dismiss the appeal.

Facts

On 7 February 2012, plaintiff MDT Personnel, LLC, filed a

complaint against APH, Wild Building, and Cincinnati, alleging

the following facts. Laurinburg Housing Authority entered into

a contract with Wild Building, hiring Wild Building to serve as

the general contractor for a construction project. Cincinnati

was Wild Building's surety on the contract. Wild Building

entered into a subcontract with APH to furnish certain labor and

materials for the project, and APH, in turn, entered into a

subcontract with MDT to furnish labor. Ultimately, APH owed MDT

an outstanding balance of $198,587.05 for labor supplied

pursuant to the subcontract.

MDT brought suit against APH for breach of contract. MDT

further alleged that Wild Building and Cincinnati were jointly

and severally liable for the balance due to MDT on its contract

with APH. MDT also asserted claims against APH and Wild

Building for unjust enrichment. -4- Wild Building and Cincinnati jointly filed an answer to

MDT's complaint and asserted cross-claims against APH for

contractual indemnity, equitable indemnity, breach of contract,

breach of warranty, and fraud. After filing an answer and

amended answer to MDT's complaint and to the cross-claims, APH

also asserted cross-claims against Wild Building and Cincinnati

for breach of contract, joint and several liability, unjust

enrichment, and attorney's fees.

It appears from the record that MDT and Wild Building

reached an agreement pursuant to which Wild Building agreed to

pay MDT the principal balance owed for MDT's labor on the

project in the amount of $184,327.24. After that agreement was

in place, the trial court entered an order granting summary

judgment in favor of MDT against APH, Wild Building, and

Cincinnati for interest owed on the principal balance, but

denying MDT's motion for summary judgment with respect to its

request for attorney's fees. On 7 December 2012, MDT took a

voluntary dismissal without prejudice, pursuant to Rule 41(a)(1)

of the Rules of Civil Procedure, of its claims for "breach of

contract only as to the recovery of principal balance,"

attorney's fees, and unjust enrichment.

The case proceeded to trial on the cross-claims of APH,

Wild Building, and Cincinnati. Following a jury verdict, the -5- trial court entered a judgment awarding Wild Building

$133,856.34 plus post-judgment interest on Wild Building's

cross-claim against APH for breach of contract. The trial court

further ordered that APH "shall have and take nothing" from any

of its cross-claims against Wild Building and Cincinnati.

APH filed a motion for a new trial pursuant to Rule 59 of

the Rules of Civil Procedure, alleging that the jury foreperson

had revealed to the trial court, parties, and counsel after the

verdict that he had a "severe hearing impairment" and was,

consequently, "incapable of performing his duties." Following a

hearing, the trial court denied the motion for a new trial in an

order entered 6 March 2013. APH appealed to this Court from the

judgment and the order denying its motion for a new trial.

Discussion

We must first address this Court's jurisdiction to hear

this appeal. "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. 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) (internal citations omitted). -6- "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). However,

"immediate appeal of interlocutory orders and judgments is

available in at least two instances. First, immediate review is

available when the trial court enters a final judgment as to one

or more, but fewer than all, claims or parties and certifies

there is no just reason for delay [under Rule 54(b) of the Rules

of Civil Procedure]. . . . Second, immediate appeal is

available from an interlocutory order or judgment which affects

a substantial right." Sharpe v. Worland, 351 N.C. 159, 161-62,

522 S.E.2d 577, 579 (1999) (internal quotation marks omitted).

Here, all of MDT's claims were resolved prior to trial

through the voluntary dismissal, and all of APH's cross-claims

against Wild Building and Cincinnati were resolved by the trial

court's judgment. The judgment also resolved Wild Building's

cross-claim against APH for breach of contract. The judgment

did not, however, address Wild Building's and Cincinnati's

cross-claims against APH for contractual indemnity, equitable

indemnity, breach of warranty, and fraud.

While it is possible that Wild Building's and Cincinnati's

cross-claims for contractual indemnity, equitable indemnity,

breach of warranty, and fraud were resolved or otherwise -7- disposed of prior to, or during, the trial, the record does not

contain any mention of any resolution of those claims. The

parties submitted to this Court a truncated trial transcript

that includes only the final day of trial. The oral rendering

of the verdict provided in that truncated transcript does not

clearly indicate what claims were decided by the jury. There is

also no verdict sheet included in the record on appeal.

On this record, we cannot determine that the appealed

judgment and order "dispose[d] of the cause as to all the

parties, leaving nothing to be judicially determined between

them in the trial court." Veazey, 231 N.C. at 361-62, 57 S.E.2d

at 381. "It is well established that the appellant bears the

burden of showing to this Court that the appeal is proper."

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

aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).

Similarly, "'it is the appellant's responsibility to make sure

that the record on appeal is complete and in proper form.'"

Smith v. Heath, 208 N.C. App. 467, 470, 703 S.E.2d 194, 196

(2010) (quoting Miller v. Miller, 92 N.C. App. 351, 353, 374

S.E.2d 467, 468 (1988)).

Moreover, Rule 28(b)(4) of the Rules of Appellate Procedure

requires that the appellant's brief include a statement of

grounds for appellate review that "shall include citation of the -8- statute or statutes permitting appellate review." Further,

"when 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, 168

N.C. App. at 518, 608 S.E.2d at 338 (quoting N.C.R. App. P.

28(b)(4)).

In this case, APH's statement of grounds for appellate

review does not indicate that the appeal has been taken from a

final judgment and order, does not cite any statute permitting

appellate review, and does not otherwise address whether this

appeal has been taken from a final judgment or whether it is

interlocutory. Rather, APH's statement of grounds for appellate

review simply summarizes APH's argument on the merits. Further,

nothing else in APH's brief or reply brief explains what

happened to the other cross-claims.1

APH has also failed to demonstrate that an interlocutory

appeal would be appropriate. The trial court did not include a

Rule 54(b) certification in its judgment or its order denying

APH's motion for new trial. Consequently, APH's appeal is

properly before this Court only if APH has met its burden of

1 We note also that nothing in Wild Building's and Cincinnati's brief suggests any resolution of the apparently outstanding cross-claims. -9- showing this Court that the judgment and order deprive it 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). APH has not, however, made any argument

regarding a substantial right.

We cannot simply assume that we have jurisdiction. Nor is

it 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." Id. See also Viar v. N.C.

Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005)

(holding that "[i]t is not the role of the appellate courts . .

. to create an appeal for an appellant").

Since APH has failed to show that this Court has

jurisdiction over this appeal, we must dismiss the appeal. See

Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254 (dismissing

interlocutory appeal because appellant "presented neither

argument nor citation to show this Court that [appellant] had

the right to appeal the order dismissing its counterclaims").

Dismissed. -10- Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).