              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1120

                                Filed: 15 March 2016

Mecklenburg County, No. 14 CVS 17400

CHRISTENBURY EYE CENTER, P.A., Plaintiff,

             v.

MEDFLOW, INC. and DOMINIC JAMES RIGGI, Defendants.


      Appeal by plaintiff from order and opinion entered 23 June 2015 by Judge

James L. Gale in Mecklenburg County Superior Court. Heard in the Court of Appeals

24 February 2016.


      Shumaker, Loop & Kendrick, LLP, by Frederick M. Thurman, Jr., for plaintiff-
      appellant.

      Robinson, Bradshaw & Hinson, P.A., by Fitz E. Barringer and Douglas M.
      Jarrell, for defendant-appellee Medflow, Inc.

      Moore & Van Allen PLLC, by Benjamin P. Fryer and Nader S. Raja, for
      defendant-appellee Dominic James Riggi.


      DAVIS, Judge.


      Christenbury Eye Center, P.A. (“Christenbury”) appeals from the trial court’s

order and opinion granting the motions of Medflow, Inc. (“Medflow”) and Dominic

James Riggi (“Riggi”) (collectively “Defendants”) to dismiss Christenbury’s claims for

breach of contract and unfair trade practices pursuant to Rule 12(b)(6) of the North
                   CHRISTENBURY EYE CTR., P.A. V. MEDFLOW, INC.

                                     Opinion of the Court



Carolina Rules of Civil Procedure. After careful review, we dismiss Christenbury’s

appeal for lack of jurisdiction.


                                   Factual Background

      Christenbury is a professional association located in Charlotte, North Carolina

that offers ophthalmology and ophthalmic services. Medflow is a software company

that develops customized enhancements to medical records management software for

medical practices and was formed by Riggi in January of 1999.

      In late 1998 or early 1999, Christenbury hired Riggi to develop a customized

medical records management software platform for use in its practice.          Riggi

subsequently formed Medflow, which worked with Christenbury to customize and

enhance a platform to suit the practice’s specific needs. Christenbury paid Medflow

in excess of $200,000.00 for the completed software platform and retained all rights

to the finished product.

      On 20 October 1999, Christenbury and Medflow entered into a written

Agreement Regarding Enhancements (“the Agreement”) pursuant to which

Christenbury agreed to assign its rights to the software platform and any subsequent

enhancements made thereto by Medflow in exchange for (1) a ten percent royalty for

all fees received in connection with the platform’s resale; and (2) a minimum yearly

royalty of $500.00 for the first five years after the Agreement was executed. The

Agreement further obligated Medflow to “provide Christenbury with a written report


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                                   Opinion of the Court



on a monthly basis which will include a detailed description of the fees received . . .

during the prior month, along with payment to Christenbury of all corresponding fees

due with respect to such charges for that prior month” and prohibited Medflow from

selling the platform or any enhancements thereto in North Carolina or South

Carolina without Christenbury’s prior written consent.

        On 22 September 2014, Christenbury filed a verified complaint in Mecklenburg

County Superior Court against Medflow and Riggi alleging, inter alia, that they had

breached the Agreement by further developing and reselling the platform to other

ophthalmological practices without paying any royalties to Christenbury. On 29

October 2014, an order was entered designating the case as a mandatory complex

business case in accordance with N.C. Gen. Stat. § 7A-45.4(b), and the case was

assigned to the Honorable James L. Gale of the North Carolina Business Court (“the

Business Court”).

        On 21 November 2014, Riggi filed a motion to dismiss Christenbury’s

complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief could

be granted. Medflow filed a similar motion to dismiss on 1 December 2014.

        A hearing on Defendants’ motions was held before Judge Gale on 5 March

2015.    On 23 June 2015, Judge Gale entered an order and opinion granting

Defendants’ motions and dismissing Christenbury’s action with prejudice.

Christenbury filed a written notice of appeal on 16 July 2015.



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                                    Opinion of the Court



                                        Analysis

      Before we can address the merits of the substantive issues raised by

Christenbury, we must first determine whether we possess jurisdiction over the

appeal. See Hyatt v. Town of Lake Lure, 191 N.C. App. 386, 390, 663 S.E.2d 320, 322

(2008) (“If an appealing party has no right of appeal, an appellate court on its own

motion should dismiss the appeal even though the question of appealability has not

been raised by the parties themselves.” (citation, quotation marks, and brackets

omitted)). For the reasons set out below, we conclude that we lack jurisdiction over

this appeal.

      In 2014, our General Assembly enacted Chapter 102 of the 2014 North

Carolina Session Laws, which, among other things, amended N.C. Gen. Stat. § 7A-27

so as to provide a direct right of appeal to the Supreme Court from a final judgment

of the Business Court. See 2014 N.C. Sess. Laws 621, 621, ch. 102, § 1. N.C. Gen.

Stat. § 7A-27(a)(2) now provides, in pertinent part, as follows:

               (a) Appeal lies of right directly to the Supreme Court in any
               of the following cases:

                     ....

                     (2) From any final judgment in a case designated as
                     a mandatory complex business case pursuant to G.S.
                     7A-45.4 . . . .

N.C. Gen. Stat. § 7A-27(a)(2) (2015) (emphasis added).




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                                       Opinion of the Court



       This statutory provision clearly mandates that appeals from final judgments1

rendered in the Business Court be brought in the North Carolina Supreme Court and

not in this Court.2 Therefore, the only remaining question is whether the 2014

amendments to N.C. Gen. Stat. § 7A-27(a)(2) apply to the present appeal.

       The effective date of the 2014 amendments to N.C. Gen. Stat. § 7A-27(a)(2) was

1 October 2014. See 2014 N.C. Sess. Laws 621, 629, ch. 102, § 9 (“Section 1 of this act

becomes effective October 1, 2014, and applies to actions designated as mandatory

complex business cases on or after that date.”). The present case was designated as

a mandatory complex business case on 29 October 2014. Therefore, this case is, in

fact, governed by the 2014 amendments to N.C. Gen. Stat. § 7A-27(a)(2). Accordingly,

we lack jurisdiction over Christenbury’s appeal, and as a result, the appeal must be

dismissed. See Hous. Auth. of City of Wilmington v. Sparks Eng’g, PLLC, 212 N.C.

App. 184, 187, 711 S.E.2d 180, 182 (2011) (“A jurisdictional default precludes the

appellate court from acting in any manner other than to dismiss the appeal.” (citation,

quotation marks, and ellipses omitted)).

                                          Conclusion




       1 N.C. Gen. Stat. § 7A-27(a), as amended, also provides that certain interlocutory orders
entered by the Business Court are likewise directly appealable to the Supreme Court. N.C. Gen. Stat.
§ 7A-27(a)(3).

       2 We note that N.C. Gen. Stat. § 7A-27 was amended once again in 2015. See 2015 N.C. Sess.
Laws 166, 166, ch. 264, § 1.(b). However, the 2015 amendments have no bearing on the jurisdictional
issue currently before us.

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                           Opinion of the Court



For the reasons stated above, this appeal is dismissed.

DISMISSED.

Judges ELMORE and HUNTER, JR. concur.




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