Pratt v. Staton

556 S.E.2d 621, 147 N.C. App. 771, 2001 N.C. App. LEXIS 1232
CourtCourt of Appeals of North Carolina
DecidedDecember 18, 2001
DocketCOA00-1415, COA01-128
StatusPublished
Cited by24 cases

This text of 556 S.E.2d 621 (Pratt v. Staton) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pratt v. Staton, 556 S.E.2d 621, 147 N.C. App. 771, 2001 N.C. App. LEXIS 1232 (N.C. Ct. App. 2001).

Opinion

*772 CAMPBELL, Judge.

Plaintiffs filed two interrelated appeals from orders granting defendant’s motion to dismiss plaintiffs’ claims for violation of restrictive covenants and unfair and deceptive trade practices. Upon plaintiffs’ motion, the appeals were consolidated for argument pursuant to N.C. R. App. P. 40. The appeals remain consolidated for decision in this opinion. For'the reasons stated herein, we dismiss both of plaintiffs’ appeals.

On 3 March 2000, plaintiffs filed the instant action alleging defendant had cut and removed trees from plaintiffs’ property in order to create a scenic view from defendant’s adjacent tract of property over plaintiffs’ property, thereby enhancing the market value of defendant’s property and causing substantial damage to plaintiffs’ property. Based on defendant’s alleged misconduct, plaintiffs asserted claims against defendant for trespass to real property, violation of N.C. Gen. Stat. § 1-539.1, conversion, trespass to chattels, negligence and unfair and deceptive trade practices. Plaintiffs further alleged that defendant had cut down and removed several trees from his own property in violation of the restrictive covenants governing the parties’ subdivision.

On 7 July 2000, defendant filed a motion to dismiss plaintiffs’ claims for violation of restrictive covenants and unfair and deceptive trade practices. Defendant’s motion was granted and the respective claims were dismissed by order filed 11 August 2000. Plaintiffs filed timely notice of appeal from the trial court’s order of dismissal. On 22 September 2000, subsequent to filing notice of appeal in COAOO-1415, plaintiffs filed a “Motion To Correct Order Dismissing Claims For Relief.” Specifically, plaintiffs moved the trial court to amend its 11 August 2000 order by certifying it for immediate appellate review pursuant to N.C. R. Civ. P. 54(b) (Rule 54(b)). On 10 October 2000, the trial court entered an amended order of dismissal which contained the trial court’s Rule 54(b) certification. Plaintiffs subsequently filed timely notice of appeal from the trial court’s amended order (COAOl-128).

The dispositive issue on appeal is whether the respective orders are properly before this Court for review. Although neither party has raised and addressed the interlocutory nature of plaintiffs’ appeals, we raise the issue of appealability on our own motion. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). “Where atrial court’s order . . . fails to resolve all issues between all parties in an *773 action, the order is not a final judgment, but rather is interlocutory.” Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 118, 516 S.E.2d 879, 881 (1999). An order, such as the orders sub judice, granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order. See Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597 (1985).

As a general rule, an interlocutory order is not immediately appealable. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). However, an interlocutory order may be immediately appealed where it is certified for appellate review pursuant to Rule 54(b), or “where delaying the appeal will irreparably impair a substantial right of the party.” Id. Here, the trial court’s 11 August 2000 order granting defendant’s motion to dismiss was not certified by the trial court pursuant to Rule 54(b). Thus, it is immediately appealable only if delay would irreparably impair a substantial right of plaintiffs.

However, plaintiffs failed to present argument in their brief to this Court to support our acceptance of this interlocutory appeal.

It is not the duty of this Court to construct arguments for or find support for appellants’] right to appeal from an interlocutory order; instead, the appellants have] the burden of showing this Court that the order deprives the appellants] 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). Since plaintiffs have failed to argue how delaying appeal of the trial court’s 11 August 2000 order would deprive them of a substantial right, we dismiss plaintiffs’ appeal of the 11 August 2000 order as interlocutory.

Apparently realizing that the trial court’s 11 August 2000 order was interlocutory, and hoping to secure its immediate appellate review, plaintiffs filed a motion to correct the order pursuant to N.C. R. Civ. R 60 (Rule 60), seeking amendment of the order to reflect the trial court’s Rule 54(b) certification. Plaintiffs relied on both Rule 60(a) and Rule 60(b)(6) as grounds for their motion to correct the order. However, for the following reasons, we hold that neither Rule 60(a) nor Rule 60(b)(6) is the appropriate tool for seeking to amend an order to add the trial court’s Rule 54(b) certification. Therefore, *774 the trial court’s 10 October 2000 amended order is vacated and plaintiffs’ appeal in COAOl-128 is likewise dismissed.

Rule 60(a) provides a limited mechanism for trial courts to amend erroneous judgments. Specifically, Rule 60(a) provides, in pertinent part:

(a) Clerical mistakes. — Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. . . .

N.C. R. Civ. P. 60(a) (1999).

“While Rule 60[a] allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment.” Food Service Specialists v. Atlas Restaurant Management, 111 N.C. App. 257, 259, 431 S.E.2d 878, 879 (1993). “A change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.” Buncombe County ex rel. Andres v. Newbum, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993). We conclude that the 10 October 2000 amended order imper-missibly altered the effect of the 11 August 2000 order.

We find this Court’s prior decision in Food Service to be closely analogous to the present situation.

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Bluebook (online)
556 S.E.2d 621, 147 N.C. App. 771, 2001 N.C. App. LEXIS 1232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pratt-v-staton-ncctapp-2001.