An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1018
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:      4 March 2014


BRADFORD SCOTT HANCOX,
as Administrator of the
ESTATE OF MISHAWN B. MILLER.,
     Plaintiff

      v.                                           Union County
                                                   No. 13 CVS 158
WINGATE UNIVERSITY; SMITH BROTHERS
FARM, a General Partnership;
KEITH SMITH, a General Partner;
GRADY SMITH, a General Partner;
and DONALD ERIC WATKINS,
     Defendants


      Appeal by plaintiff from order entered 28 March 2013 by

Judge W. David Lee in Union County Superior Court.                  Heard in the

Court of Appeals 22 January 2014.


      Michael A. Jones for plaintiff-appellant.

      Carruthers & Roth, P.A., by Jack B.                   Bayliss,     Jr.,   for
      defendant-appellee Wingate University.


      DAVIS, Judge.


      Bradford Scott Hancox (“Plaintiff”), the administrator of

the   estate     of    Mishawn     B.     Miller      (“Miller”),   brings      this

interlocutory      appeal    from       the   trial    court’s   order    granting
                                             -2-


summary    judgment      in    favor    of    Wingate       University        (“Wingate”).

After careful review, we conclude that Plaintiff has failed to

establish      that     his    appeal        implicates         a   substantial       right.

Accordingly,      we    dismiss        the    appeal       for      lack     of   appellate

jurisdiction.

                                Factual Background

       Miller was a recent high school graduate who was accepted

into Wingate for the 2010-11 academic year.                               Wingate invited

Miller    to   participate       in    its     Early      Academic        Success    Program

(“EASP”),      which     was     held        during       the       summer    before     the

participants’ freshman year and was designed to assist incoming

students in acclimating to college life.

       On 14 August 2010, the                EASP     students were scheduled to

participate in a ropes course activity approximately five miles

from     Wingate’s      campus.          Dr.        Heather         P.    McDivitt      (“Dr.

McDivitt”),      an    academic       advisor       and   program         coordinator    for

EASP, determined that based on the program’s goal of introducing

students to college life, “it was appropriate to have the EASP

students ride with student mentors or carpool with fellow EASP

students to the ropes course.”                  In her affidavit, Dr. McDivitt

stated    that    the    students       “made       their       own      arrangements    for

transportation” to the ropes course and that she did not assign

drivers or riders.
                                     -3-


      Miller drove himself and three fellow students to the ropes

course    in   his   personal    vehicle.       While   en   route,   Miller’s

vehicle collided with a truck owned by Smith Brothers Farm and

driven    by   Donald   Eric    Watkins   (“Watkins”).       Miller    and   one

passenger were killed, and the other two passengers sustained

serious injuries.

      On 13 August 2012, Plaintiff filed suit against Wingate,

Smith Brothers Farm, Watkins, and Keith Smith and Grady Smith —

the two general partners of Smith Brothers Farm — alleging that

each party’s negligence proximately caused Miller’s death.                   On

23 January 2013, Wingate filed a motion for summary judgment,

and on 18 March 2013, Defendants Smith Brothers Farm, Keith

Smith, Grady Smith, and Watkins filed a joint summary judgment

motion.

      By order entered on 28 March 2013, the trial court granted

summary judgment in favor of Wingate but denied the remaining

defendants’ motion, determining that “there are genuine issues

of   material    fact   with    respect    to   the   plaintiff’s     remaining

claims for relief against the defendants Smith Brothers Farm,

Keith Smith, Grady Smith and Donald Eric Watkins and that said

defendants are not entitled to judgment as a matter of law.”

Plaintiff gave timely notice of appeal.               The sole issue raised

on appeal is whether the trial court erred in entering summary

judgment in favor of Wingate.
                                         -4-


                                       Analysis

      Before we can address the substantive issues presented in

Plaintiff’s        appeal,     we     must     determine         whether        appellate

jurisdiction exists over the appeal.                 Because the trial court’s

order     granted    summary        judgment    as    to       only    one     defendant,

Plaintiff’s     claims    against      the     remaining       four     defendants    are

still pending and, therefore, this appeal is interlocutory.                           See

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)).

      Because      “[e]ntry    of     judgment       for       fewer    than    all   the

defendants is not a final judgment . . . [such orders] may not

be appealed in the absence of certification pursuant to Rule

54(b) [of the North Carolina Rules of Civil Procedure] unless

the   entry   of    summary    judgment        affects     a    substantial       right.”

Camp v. Leonard, 133 N.C. App. 554, 557, 515 S.E.2d 909, 912

(1999).     As the trial court did not certify the order granting

summary    judgment      in   favor     of     Wingate     for        immediate   appeal

pursuant to Rule 54(b), it is Plaintiff’s burden to show that a

substantial right would be jeopardized unless he is permitted to
                                            -5-


immediately appeal.          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 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).

    In    his     brief,      Plaintiff         acknowledges     the    interlocutory

nature of his appeal but states that the appeal “is taken on the

grounds   that    it    is    a   case     of     first   impression,         or    in   the

alternative,      that       there    should        be    an    extension          of    the

application of current law to [the] case at bar.”                                  However,

Plaintiff    cites     no    legal    authority,          and   we     know    of       none,

supporting      the    proposition         that    the    existence     of     appellate

jurisdiction over an interlocutory appeal is affected by the

novelty of the underlying issues contained therein.

    Plaintiff’s only reference to the issue of whether this

appeal affects a substantial right is his bare assertion that

delaying the appeal may expose him to “the costly burden of

litigating      substantially        the    same     matter     twice.”            However,

Plaintiff has provided no specific argument nor cited to any
                                       -6-


case law to support this assertion.             See Hoke Cty. Bd. of Educ. v.

State,   198   N.C.   App.   274,     277-78,    679   S.E.2d    512,   516   (“The

appellants must present more than a bare assertion that the order

affects a substantial right; they must demonstrate why the order

affects a substantial right.”), disc. review denied, 363 N.C. 653,

686 S.E.2d 515 (2009).

     Our prior caselaw has made clear that “[i]t is not the duty

of this Court to construct arguments for or find support for

appellant’s right to appeal from an interlocutory order . . . .”

Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380,

444 S.E.2d 252, 254 (1994).             Because Plaintiff has failed to

establish that a substantial right would be lost or prejudiced

unless   an    immediate     appeal    is    allowed,    we     are   required   to

dismiss the appeal.

                                    Conclusion

     For the reasons set forth above, Plaintiff’s interlocutory

appeal is dismissed.

     DISMISSED.

     Judges STEELMAN and STEPHENS concur.

     Report per Rule 30(e).
