An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-146
                         NORTH CAROLINA COURT OF APPEALS

                              Filed:      17 June 2014


CENTURY FIRE PROTECTION, LLC,
     Plaintiff,

      v.                                      Catawba County
                                              No. 12 CVS 1788
CURTIS NEAL MAUSER HEIRS;
STEPHEN MAUSER; BETTY MAUSER
SCIPONE; NADEAN M. YODER; J.C.
FAW; and MELVIN HOWELL, d/b/a
“Club Miami”
     Defendants.


      Appeal by plaintiff from order entered 24 June 2013                         by

Judge   Timothy     S.    Kincaid    in   Catawba    County    Superior     Court.

Heard in the Court of Appeals 22 May 2014.


      Kenison, Dudley & Crawford, LLC, by Thomas E. Dudley, III,
      for plaintiff-appellant.

      Sigmon, Clark, Mackie, Hanvey & Ferrell, P.A., by Stephen
      L. Palmer, for defendant-appellees.


      DAVIS, Judge.


      Century Fire Protection, LLC (“Plaintiff”) appeals from the

trial court’s order awarding attorneys’ fees pursuant to N.C.

Gen. Stat. § 44A-35 to the Curtis Neal Mauser Heirs, Stephen

Mauser,    and    Betty    Mauser    Scipone     (collectively       “the   Mauser
                                          -2-
Defendants”).           After        careful    review,      we     conclude        that

Plaintiff’s       appeal      is    interlocutory,        does    not    implicate     a

substantial right, and must be dismissed.

                                   Factual Background

      On 27 June 2012, Plaintiff filed a complaint in Catawba

County Superior Court against the Mauser Defendants, Nadean M.

Yoder,     J.C.    Faw,       and     Melvin    Howell      d/b/a       “Club   Miami”

(collectively       “Defendants”).             In   its     complaint,      Plaintiff

alleged    that    it   had    provided     “fire    protection         materials    and

labor” pursuant to a contract it had entered into with J.C. Faw

and Melvin Howell, who were acting as agents for the remaining

Defendants.       The complaint further alleged that Plaintiff had

“fully performed its obligations under the contract and provided

materials and labor . . . in the amount of $52,525.00” but that

Defendants had “unreasonably refused to pay Plaintiff’s claim.”

In   its   complaint,      Plaintiff      sought    recovery      under     breach    of

contract and quantum meruit theories and sought to enforce its

claim of lien against Defendants’ real property.

      On 3 August 2012, the Mauser Defendants filed an amended

answer and motion to dismiss under Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure or,                     in the alternative, a

motion for summary judgment pursuant to Rule 56.                           The Mauser
                                           -3-
Defendants’ motion was heard by the Honorable Timothy S. Kincaid

in Catawba County Superior Court on 28 May 2013.                           The trial

court concluded that (1) J.C. Haw and Melvin Howell did not have

the authority to act as agents for the Mauser Defendants; and

(2)    there   was    no   contract    between      Plaintiff     and    the    Mauser

Defendants.          Accordingly,     on    19    June   2013,   the    trial    court

entered   an   order       granting   summary       judgment     in    favor   of   the

Mauser Defendants as to all of Plaintiff’s claims.                         The trial

court also ordered Plaintiff to pay $7,860.12 in attorneys’ fees

by order entered 24 June 2013.                   Plaintiff appeals from the 24

June    2013    order      awarding        attorneys’     fees    to     the    Mauser

Defendants.

                                      Analysis

       The trial court’s 19 June 2013 partial summary judgment

order made clear that summary judgment was being granted only in

favor of the Mauser Defendants.                   As such, the order does not

dispose of Plaintiff’s claims against Nadean M. Yoder, J.C. Faw,

and Melvin Howell.          When summary judgment is granted in favor of

some but not all defendants, the case is not resolved as to all

of the parties, and orders entered prior to such resolution are

interlocutory.         See Mecklenburg Cty. v. Simply Fashion Stores,

Ltd., 208 N.C. App. 664, 667, 704 S.E.2d 48, 51 (2010) (“An
                                            -4-
order is interlocutory when it does not dispose of the entire

case but instead, leaves outstanding issues for further action

at the trial level.”), appeal dismissed and disc. review denied,

365 N.C. 187, 707 S.E.2d 231 (2011); Myers v. Barringer, 101

N.C.    App.    168,     172,      398    S.E.2d    615,    617    (1990)     (“Summary

judgment       granted        to   some    but     not     all    defendants      is   an

interlocutory judgment since it does not dispose of the case but

leaves it for further action for the trial court in order to

settle    and    determine         the    entire   controversy.”          (citation    and

internal quotation marks omitted)).

       In this case, there is no indication in the record that

Plaintiff’s claims against the remaining Defendants have been

resolved.        Nor     is    there      any   indication       that     Plaintiff    has

voluntarily dismissed those claims.                      See Hernandez v. Coldwell

Banker Sea Coast Realty, ___ N.C. App. ___, ___, 735 S.E.2d 605,

608 (2012) (explaining that when plaintiff voluntarily dismissed

all    claims    against       remaining        defendants,      “the     trial   court’s

grant of partial summary judgment became a final order and [was]

properly before us”), disc. review denied, 366 N.C. 436, 736

S.E.2d    192    (2013).           Thus,    because       the    claims    asserted     in

Plaintiff’s complaint have yet to be resolved in their entirety,
                                     -5-
the order awarding attorneys’ fees to the Mauser Defendants is

interlocutory.

       Therefore, we must determine whether we have jurisdiction

over Plaintiff’s interlocutory appeal.

                    There are only two means by which an
              interlocutory order may be appealed: (1) if
              the order is final as to some but not all of
              the claims or parties and the trial court
              certifies there is no just reason to delay
              the appeal pursuant to [North Carolina Rule
              of Civil Procedure] 54(b) or (2) if the
              trial    court’s   decision   deprives   the
              appellant of a substantial right which would
              be lost absent immediate review.

Eastover Ridge, L.L.C. v. Metric Constructors, Inc., 139 N.C.

App.   360,    363,   533   S.E.2d   827,   830   (citation   and    internal

quotation marks omitted), disc. review denied, 353 N.C. 262, 546

S.E.2d 93 (2000).

       Because the trial court did not certify its order awarding

attorneys’ fees for immediate appeal pursuant to Rule 54(b), it

is Plaintiff’s burden to show that a substantial right would be

jeopardized unless an immediate appeal is permitted.                Embler v.

Embler, 143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001).

                   It   is  well   established  that  the
              appellant bears the burden of showing to
              this Court that the appeal is proper. . . .
              [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
                                   -6-
              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).

      Plaintiff’s brief fails to acknowledge the interlocutory

nature of the appeal and, therefore, presents no argument that

the   order    granting   attorneys’   fees   in   favor   of   the    Mauser

Defendants affects a substantial right.1           As such, Plaintiff has

failed to satisfy its burden of establishing that a substantial

right would be lost or prejudiced unless an immediate appeal is

allowed.      See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.

App. 377, 380, 444 S.E.2d 252, 254 (1994) (“It is not the duty

of this Court to construct arguments for or find support for

[an] appellant’s right to appeal from an interlocutory order . .

. .”).   Accordingly, we dismiss the appeal.

                               Conclusion

      For the reasons set forth above, Plaintiff’s interlocutory

appeal is dismissed.

      DISMISSED.

      Judges HUNTER, JR. and ERVIN concur.



1
   Instead, Plaintiff’s brief incorrectly            states     that   it   is
appealing from a final judgment.
                         -7-
Report per Rule 30(e).
