MDT Pers., LLC v. APH Contr'rs, Inc. ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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,
v.
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
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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
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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.
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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
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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).
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"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
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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
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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.
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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.
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Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).