An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 14-263
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


HUBERT JEFFRIES,
     Plaintiff,

      v.                                       Forsyth County
                                               No. 12 CVS 1970
MERCEDES L. MILLER
and EDWARD L. MILLER,
     Defendants.


      Appeal     by   Plaintiff      from      order    of     dismissal    without

prejudice     entered    7    January   2014    by     Judge    Richard    Stone   in

Forsyth County Superior Court. Heard in the Court of Appeals 10

September 2014.


      Plaintiff Hubert Jeffries, pro se.

      No brief for Defendants.


      STEPHENS, Judge.


                               Procedural History

      This appeal arises from the denial of a motion by Plaintiff

Hubert     Jeffries     for    summary      judgment      and     the     subsequent

dismissal without prejudice of his pro se complaint to quiet

title to a parcel of land in Forsyth County and to cancel a 2007
                                              -2-
deed conveying the land to Defendants Mercedes L. Miller and

Edward L. Miller. On 21 March 2012, Plaintiff filed this action,

alleging Defendants forged his signature on a general warranty

deed to property located at 3881 Northampton Road in Winston-

Salem. In their answer, Defendants denied any fraud and claimed

the   transaction       was       actually     conducted     by     Plaintiff’s     wife,

Queenesther      Jeffries,        who    is   listed      along   with     Plaintiff     as

grantor on the deed in question and against whom Defendants had

already       obtained        a     judgment        for     breach        of     contract.

Additionally, Defendants filed a Rule 12(b) motion to dismiss

for failure to state a claim upon which relief can be granted

and failure to join a necessary party.

       After the court denied Defendants’ motion, and subsequent

attempts to reach a mediated settlement failed, Plaintiff filed

a    motion   for   summary         judgment.       In    support    of    his    motion,

Plaintiff provided: (1) a copy of the allegedly forged deed; (2)

a copy of a letter from North Carolina Secretary of State Elaine

F.    Marshall    revoking         the   license     of    the    notary       public   who

notarized the deed at issue after he failed to respond to an

unrelated complaint of forgery involving Plaintiff’s brother-in-

law, George T. Powell, Jr.; and (3) an affidavit restating the

allegations      from    Plaintiff’s          original     complaint       that    he   had
                                           -3-
never met Defendants and never made, signed, acknowledged, or

delivered the deed in question to them.

      Following a hearing, the trial court determined, based on a

review     of     the      pleadings      and       the         arguments       presented       by

Defendants’          counsel,    that     genuine          issues        of   material         fact

existed and denied Plaintiff’s motion for summary judgment. In

response, Plaintiff and Powell, who is not an attorney, filed

motions    objecting        to   the    court’s       decision,          requesting       a    new

hearing on summary judgment and a jury trial, and demanding that

Defendants be sanctioned for “misleading” the court as to the

existence       of    a   genuine     issue     of    material          fact,     as    well    as

criminally       prosecuted       for    forgery.           At    the     ensuing       pretrial

hearing,       the     court     repeatedly         advised           Plaintiff    to     obtain

counsel,        admonished       Powell       for         his     attempts        to     act    as

Plaintiff’s          attorney,    and     continued             the     matter    for     trial.

Plaintiff responded with a motion objecting to the continuance

and   requesting          disqualification           of    the        presiding    judge       for

personal bias and prejudice based on her refusal to recognize

Powell as his “Power of Attorney.”

      The matter was eventually scheduled for trial during the

court’s    6     January       2014    term.    Plaintiff             appeared     pro    se    at

calendar call and was given notice in open court that trial
                                             -4-
would begin on 7 January 2014. Nevertheless, Plaintiff failed to

appear for trial the following day. Instead, an “unknown person”

[presumably Powell] informed the court that Plaintiff could not

appear due to illness. Upon Defendants’ objection to the matter

being    continued          further,        the    court     dismissed       Plaintiff’s

complaint without prejudice for failure to appear and prosecute,

pursuant to Rule 41(b) of the North Carolina Rules of Civil

Procedure. Plaintiff gave timely notice of his intent to appeal.

                                Plaintiff’s Appeal

    The core of Plaintiff’s pro se appeal seeks to challenge

the denial of his motion for summary judgment, based on what

appears to be a fundamental misapprehension of our State’s Rules

of Civil Procedure. Essentially, Plaintiff contends that because

Defendants did not answer his motion for summary judgment with

affidavits       disproving     his     accusations         of    forgery,    the   trial

court    erred    as    a   matter     of    law,   abused       its   discretion,   and

deprived him of a fair and impartial hearing when it declined to

grant his motion. Plaintiff also argues that dismissal of his

complaint without prejudice deprived him of his right to a jury

trial,    and    that    the   trial     court      erred    in    refusing    to   allow

Powell to appear on Plaintiff’s behalf by exercising his “Power

of Attorney.” However, given the interlocutory nature of this
                                           -5-
appeal,      we    lack     jurisdiction      to    hear       any    of        Plaintiff’s

arguments and must therefore dismiss.

      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.” Cagle v. Teachy, 111 N.C.

App. 244, 247, 431 S.E.2d 801, 803 (1993). “There is generally

no   right    to    appeal    an     interlocutory       order.”          N.C.       Dep’t    of

Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334

(1995).      The      rationale      behind      this        rule    is        “to    prevent

fragmentary, premature and unnecessary appeals by permitting the

trial court to bring the case to final judgment before it is

presented to the appellate courts.” Fraser v. Di Santi, 75 N.C.

App. 654, 655, 331 S.E.2d 217, 218, disc. review denied, 315

N.C. 183, 337 S.E.2d 856 (1985).

      “Orders       which     deny     summary      judgment          are        ordinarily

interlocutory and not appealable.” Harbin Yinhai Tech. Dev. Co.

v. Greentree Fin. Grp., Inc., 196 N.C. App. 615, 620, 677 S.E.2d

854, 858 (2009). Likewise, “[u]nless an exception applies, an

order   of    dismissal      without    prejudice        is     interlocutory.”              Id.

(citation omitted). A party is only permitted to appeal from an

interlocutory order if one of two exceptions applies: first,
                                     -6-
“where there has been a final determination of at least one

claim, and the trial court certifies there is no just reason to

delay the appeal,” or second,             “if delaying the appeal would

prejudice a ‘substantial right.’” Liggett Grp., Inc. v. Sunas,

113 N.C. App. 19, 23–24, 437 S.E.2d 674, 677 (1993).

      In   the    present    case,   Plaintiff     fails     to    grasp     the

interlocutory nature of his appeal and provides no explanation

for how it meets either of the two established exceptions. In

any event, we find that neither exception applies to either of

the   orders     Plaintiff   seeks   to    challenge.   On   the   one     hand,

neither the order denying summary judgment nor the order of

dismissal without prejudice constituted a final determination of

Plaintiff’s claim. On the other hand, because Rule 41(b) of our

State’s Rules of Civil Procedure provides that a new action may

be brought based on the same claim if commenced within one year

of a dismissal without prejudice, Plaintiff is still free to

refile his claim, and has therefore suffered no prejudice to any

substantial right. Accordingly, we dismiss.

      DISMISSED

      Judges CALABRIA and ELMORE concur.

      Report per Rule 30(e).
