An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-405
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 October 2014


KIMBERLY D. BOYKIN, EXECUTRIX OF
THE ESTATE OF ALFRED D. STEWART,
     Plaintiff,

      v.                                      Johnston County
                                              No. 13 CVS 531
SELCO CONSTRUCTION, INC.
FRANKLIN WADE EASON,
     Defendants.


      Appeal by defendant from order entered 9 January 2014 by

Judge Thomas H. Lock in Johnston County Superior Court.                       Heard

in the Court of Appeals 24 September 2014.


      The Armstrong Law Firm, P.A., by L. Lamar Armstrong, Jr.,
      and Ashley & Ashley, by Emery D. Ashley, for plaintiff-
      appellee.

      Harris Sarratt & Hodges,             LLP,   by   John    L.   Sarratt,    for
      defendant-appellant Selco.


      STEELMAN, Judge.


      Where the trial court granted partial summary judgment in

favor of plaintiff on only one of the issues pertaining to one

of   the   claims     raised    in   plaintiff’s       complaint,     defendant’s

appeal is interlocutory, and not properly before this Court.
                                    -2-




                I. Factual and Procedural Background

    Alfred D. Stewart (Stewart), Franklin Wade Eason (Eason),

and Ricky Lee Lundquist (Lundquist), formed Selco Construction,

Inc. (Selco).      On 1 March 1995, Stewart, Eason, and Lundquist,

owners of all of the capital stock of Selco, entered into an

agreement   with   Selco   (the   Agreement)    that   the   company   would

purchase the stock of a deceased shareholder from his estate.

The Agreement recited that Selco was the owner of life insurance

policies on each of the shareholders, and reserved the right to

purchase additional insurance.            Further, the Agreement placed

restrictions on the sale of the capital stock of Selco.

    With respect to the redemption of stock by Selco upon the

death of a shareholder, the Agreement provided that:

            Within thirty days after the end of each
            fiscal year of the Company, or as soon
            thereafter as   possible, the parties shall
            re-determine the fair market value per share
            of their stock for the then current fiscal
            year and shall endorse such re-determined
            value with signatures. The agreed fair
            market value will be arrived at by taking
            the book value of the Company and then
            adjusting the book value with the actual
            appraised value of equipment and fixtures
            and by using the actual cost or market value
            of inventory, whichever is less. If the
            parties have failed to re-determine such
                                            -3-
              value for a particular fiscal year, the
              Company accountant will arrive at said fair
              market value in accordance with the above-
              stated formula. In arriving at the fair
              market value, no amount will be included for
              good will.

      In March of 2002, Lundquist left Selco, and the company

redeemed his stock for the sum of $792,453.52, in a negotiated

transaction.          This     left     Stewart     and     Eason   as   the      only

shareholders of Selco.

      Stewart      died   on    25    March    2012,     owning   one-half   of   the

capital stock of Selco.              Selco retained the services of Oliver

Wall (Wall) to perform an appraisal of Selco’s assets and a

valuation of Stewart’s stock (the Wall report).                       This report,

dated 1 June 2012, valued Stewart’s stock at $584,154.47.

      On 31 July 2013, Kimberly D. Boykin, executrix of Stewart’s

estate (plaintiff), filed an amended complaint against Selco and

Eason, alleging the following claims: (1) a declaratory judgment

that funds received by Selco from the life insurance on Stewart

and   funds    from   the      “Honaker     settlement”      be   included   in   the

valuation of Selco and Stewart’s stock; (2) for breach of the

Agreement     by   Selco;      (3)    for     tortious    interference   with     the

Agreement by Eason; and (4) for punitive damages against Eason.

On 1 October 2013, Selco and Eason (collectively, defendants)
                                                -4-
filed an answer, counterclaim, and motion to dismiss.                                         On 10

October 2013, plaintiff replied to defendants’ counterclaim.

       On    30       December    2013,     plaintiff            filed     a   second      amended

complaint, alleging the same underlying facts, but seeking only

a    declaratory        judgment      and    breach         of    contract        by    Selco    and

Eason.           On    24    January     2014,        defendants          filed        answer    and

counterclaim           to   plaintiff’s      second         amended       complaint.            On   4

February 2014, plaintiff replied to defendants’ counterclaim.

       On 18 April 2013, Selco filed a motion for judgment on the

pleadings or, in the alternative, a motion for summary judgment.

On    26    November        2013,   plaintiff         filed        a     motion    for     partial

summary      judgment        with   respect       to    the        date    of     valuation          of

Stewart’s stock.

       On    3    January        2014,    the     trial          court    entered        an     order

containing        the       following       rulings:        (1)        granting        plaintiff’s

motion for leave to file a second amended complaint; (2) denying

as moot Eason’s motion to dismiss                           the counts of plaintiff’s

complaint that were eliminated in the second amended complaint;

and   (3)    denying        Selco’s      motion       for    summary       judgment.            On   9

January 2014, the trial court entered an order on plaintiff’s

motion for partial summary judgment with respect to the issue of

the date of valuation of Stewart’s stock.                                This order declared
                                              -5-
that the date of valuation under the Agreement was 25 March

2012, the date of Stewart’s death.                   The trial court thus granted

plaintiff’s        motion      for    partial       summary    judgment    and     denied

defendant’s     motion         for    partial    summary      judgment.      The    trial

court did not certify this order pursuant to Rule 54(b) of the

North Carolina Rules of Civil Procedure.

      From    the     9    January     2014     order   granting      partial    summary

judgment in favor of plaintiff, Selco appeals.

                               II. Interlocutory Appeal

      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.   Dept.     of

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

(1995).

              “A   grant  of  partial  summary   judgment,
              because it does not completely dispose of
              the case, is an interlocutory order from
              which there is ordinarily no right of
              appeal.” Liggett Group, Inc. v. Sunas, 113
              N.C. App. 19, 23, 437 S.E.2d 674, 677
              (1993). “The reason for this rule is to
              prevent    fragmentary,    premature     and
              unnecessary appeals by permitting the trial
              court to bring the case to final judgment
                              -6-
         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).

         “Nonetheless, in two instances a party is
         permitted     to      appeal      interlocutory
         orders....” Liggett Group Inc., 113 N.C.
         App. at 23, 437 S.E.2d at 677 (emphasis by
         underline   added).    First,   a    party   is
         permitted to appeal from an interlocutory
         order when the trial court enters “a final
         judgment as to one or more but fewer than
         all of the claims or parties” and the trial
         court certifies in the judgment that there
         is no just reason to delay the appeal.
         N.C.R. Civ. P. 54(b); Liggett Group Inc.,
         113 N.C. App. at 23, 437 S.E.2d at 677.
         Second, a party is permitted to appeal from
         an interlocutory order when “the order
         deprives the appellant of a substantial
         right which would be jeopardized absent a
         review prior to a final determination on the
         merits.” Southern Uniform Rentals, Inc. v.
         Iowa Nat'l Mut. Ins. Co., 90 N.C. App. 738,
         740, 370 S.E.2d 76, 78 (1988); N.C. Gen.
         Stat. § 1-277. Under either of these two
         circumstances, it is the appellant's burden
         to present appropriate grounds for this
         Court's   acceptance    of   an  interlocutory
         appeal and our Court's responsibility to
         review those grounds.

Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379,

444 S.E.2d 252, 253 (1994).

    In the instant case, the trial court did not certify its

order on partial summary judgment for immediate appeal.    Selco

nonetheless contends that the order affects a substantial right.

Specifically, Selco argues that the valuation date of Stewart’s
                                              -7-
stock is the sole material fact in dispute, and “[t]he only

matter as to which both parties seek declaratory relief from the

court[.]”         This is not correct.

       Plaintiff’s second amended complaint sought a declaratory

judgment.         However, the declaratory judgment sought by plaintiff

included      a    declaration        that:    (1)    Wall    was    not    the    “company

accountant” authorized to value the stock; (2) Wall did not

properly enforce the Agreement; (3) the Wall report was obtained

by fraud and duress; (4) Selco waived any right to rely on the

Wall   report;         (5)    Selco’s    breach       of     the    Agreement      and   its

covenant      of       good   faith     and    fair    dealing       prevent       it    from

enforcing the Wall report; (6) the proper date of valuation is

the    date       of     Stewart’s      death;       (7)     Selco’s       insurance     and

settlement proceeds are Selco assets that must be included in

the valuation of stock; (8) the value of the stock was at least

$1,525,887;        (9)    the   Stewart       estate    remains      a   shareholder       in

Selco; and (10) by its acts or omissions, Selco has impaired

Stewart’s interest in Selco.                  Of these ten issues raised in the

declaratory         judgment     portion        of     the     complaint,         only    one

pertained to the date of valuation.                    Plaintiff’s second amended

complaint also alleged breach of contract by Selco and Eason for
                                -8-
failure to act in good faith, failure to pay the proper value of

the stock, and manipulation of the valuation process.

    Of the issues raised in plaintiff’s complaint, the trial

court’s order on partial summary judgment resolved only the date

of valuation.    The order did not resolve whether plaintiff’s or

Selco’s valuation method was correct, whether Selco’s valuation

constituted a breach of contract, whether the Wall report was

authorized or obtained fraudulently, nor any other issue raised

by plaintiff’s complaint.    Those issues are still pending before

the trial court.    Selco’s bare assertion that this issue “goes

to the very heart of the matter” is unpersuasive.         Further,

Selco’s argument for the existence of a substantial right is

based solely upon the materiality of this single issue.      Selco

has therefore failed to successfully argue for the existence of

a substantial right which would be prejudiced absent review by

this Court.

    We hold that this appeal is not properly before us.

    DISMISSED.

    Judges CALABRIA and McCULLOUGH concur.

    Report per Rule 30(e).
