An unpublished opinion of the North Carolina Court of Appeals does not constitute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.


               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-362

                                 Filed: 20 October 2015

Iredell County, No. 14 CVS 779

THOMAS DAVID BOST, Plaintiff,

              v.

GALE ANN CHRISTIANA HELLER F/K/A GALE ANN CHRISTIANA BOST,
Defendant.


       Appeal by plaintiff from order entered 13 January 2015 by Judge A. Robinson

Hassell in Iredell County Superior Court.          Heard in the Court of Appeals 22

September 2015.


       Jones, Childers, McLurkin & Donaldson, PLLC, by Dennis W. Dorsey and
       Kevin C. Donaldson, for plaintiff-appellant.

       The McIntosh Law Firm, P.C., by Robert G. McIntosh and Maren Tallent Werts,
       for defendant-appellee.


       TYSON, Judge.


       Thomas David Bost (“Plaintiff”) appeals from an order denying his motion for

partial summary judgment and granting summary judgment in favor of his mother,

Gale Ann Christiana Heller (“Defendant”). We dismiss the appeal as interlocutory.

                                     I. Factual Background
                                   BOST V. HELLER

                                  Opinion of the Court



      This case involves an inter-family dispute over $6,878.61 and the ownership of

a parcel of real property located in Mooresville, North Carolina.        Both parties

stipulated to the following facts: On 23 August 1985, Defendant and Lloyd David Bost

(“Lloyd”), Plaintiff’s father, each became the record title owners of a one-half

undivided interest in real property (“the property”) containing three separate tracts

and located at 159 Windchime Lane in Mooresville, North Carolina. On 31 October

1986, Defendant conveyed her one-half undivided interest in the property to Lloyd,

who became its sole owner. Defendant and Lloyd were married on 7 November 1987.

On 14 June 1989, Lloyd executed a document entitled “Last Will and Testament of

Lloyd David Bost.” Defendant was named as Lloyd’s executrix and he conveyed the

entirety of his estate, both real and personal, to Defendant upon his death. On 23

October 1990, Plaintiff was born of the marriage. Lloyd died on 12 January 1995.

His will was presented to the Iredell County Clerk of Court for probate on the day of

his death. Pursuant to the terms of the will, Defendant received the entirety of

Lloyd’s estate; the will made no devise to, nor mention of, Plaintiff or any after-born

children.

      On 17 April 2014, Plaintiff filed a complaint in Iredell County Superior Court

seeking to quiet title in the property and for conversion of a share of the personal

property contained in Lloyd’s estate. Plaintiff asserted he is entitled to share in

Lloyd’s estate as if his father had died intestate pursuant to N.C. Gen. Stat. § 31-5.5



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                                   Opinion of the Court



(1994). Plaintiff asserted this statute entitles him to a one-half undivided interest in

the real property in Lloyd’s estate, and a one-half share of all personal property in

Lloyd’s estate in excess of Defendant’s spousal or annual allowance of $30,000.00

pursuant to N.C. Gen. Stat. § 30-15, which amounted to $6,878.61. On 20 June 2014,

Defendant filed a motion to dismiss, answer, and counterclaims.

      Defendant alleged three counterclaims against Plaintiff.           First, Defendant

alleged Plaintiff had converted various household tools, automotive tools and

automotive parts owned by Defendant, and had taken Defendant’s vehicles apart,

rendering them useless.     Second, Defendant asserted, if Plaintiff is entitled to

judgment on either of his claims, she is entitled to a life estate in the property

pursuant to N.C. Gen. Stat. § 29-30(b) and claimed such life estate pursuant to N.C.

Gen. Stat. § 29-30(c)(4). Third, Defendant claimed if Plaintiff is entitled to judgment

on any of his claims, she is entitled to betterments and loss of rent.

      After discovery, Plaintiff filed a motion for partial summary judgment on 31

October 2014 and claimed he is entitled to judgment as a matter of law on his quiet

title action against Defendant. The Court requested Defendant to convert her motion

to dismiss to a motion for summary judgment, and Defendant acquiesced. The trial

court granted Defendant’s motion for summary judgment, and denied Plaintiff’s

motion for partial summary judgment. Plaintiff appeals.

                                        II. Issue



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                                   Opinion of the Court



      Plaintiff argues the trial court erred in granting Defendant’s motion for

summary judgment and denying his motion for summary judgment. He asserts he is

the lawful owner of a one-half undivided interest in the property and entitled to one-

half of Lloyd’s estate in excess of $30,000.00 pursuant to N.C. Gen. Stat. § 31-5.5.

                                   III. Standard of Review

      Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see Draughon

v. Harnett Cnty. Bd. Of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003)

(citation and internal quotation marks omitted), aff’d per curiam, 358 N.C. 131, 591

S.E.2d 521 (2004).

      “In a motion for summary judgment, the evidence presented to the trial court

must be . . . viewed in a light most favorable to the non-moving party.” Howerton v.

Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (citation omitted).

             An issue is “genuine” if it can be proven by substantial
             evidence and a fact is “material” if it would constitute or
             irrevocably establish any material element of a claim or a
             defense.

                     A party moving for summary judgment may prevail
             if it meets the burden (1) of proving an essential element of
             the opposing party’s claim is nonexistent, or (2) of showing
             through discovery that the opposing party cannot produce
             evidence to support an essential element of his or her


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                                    Opinion of the Court



               claim. Generally this means that on undisputed aspects of
               the opposing evidential forecast, where there is no genuine
               issue of fact, the moving party is entitled to judgment as a
               matter of law. If the moving party meets this burden, the
               non-moving party must in turn either show that a genuine
               issue of material fact exists for trial or must provide an
               excuse for not doing so.

Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations and

internal quotation marks omitted). This Court reviews an order granting summary

judgment de novo as a matter of law. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d

572, 576 (2008).

                                      IV. Analysis

                                     A. Jurisdiction

         We initially determine whether Plaintiff’s appeal is properly before us. While

Defendant did not assert this appeal should be dismissed as interlocutory, this Court

may do so sua sponte. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433

(1980); Milton v. Thompson, 170 N.C. App. 176, 179, 611 S.E.2d 474, 477 (2005).

Plaintiff contends that this appeal is proper pursuant to N.C. Gen. Stat. § 1A-1, Rule

54(b).    He asserts the trial court’s order denying Plaintiff’s motion for partial

summary judgment and allowing Defendant’s motion for summary judgment is a

final judgment. In the alternative, Plaintiff contends that the trial court’s order

affects a substantial right of the parties, and is proper pursuant to N.C. Gen. Stat. §

1-277(a) and N.C. Gen. Stat. § 7A-27(b)(3)(a).



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                                       Opinion of the Court



                                B. Interlocutory Appeal

      An appeal is interlocutory when noticed from an order entered during the

pendency of an action, which does not dispose of the entire case and the trial court

must take further action in order to finally determine the rights of all parties involved

in the controversy. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377,

381 (1950). An interlocutory order does not settle all pending issues and “directs

some further proceeding. . . to [reach] the final decree.” Heavner v. Heavner, 73 N.C.

App. 331, 332, 326 S.E.2d 78, 80 (citation omitted), disc. rev. denied, 313 N.C. 601,

330 S.E.2d 610 (1985). Here, the trial court’s denial of Plaintiff’s motion for partial

summary judgment and allowance of Defendant’s motion for summary judgment did

not settle all of the pending issues in the case. The trial court did not dispose of

Defendant’s three counterclaims. The trial court’s order was not a final judgment.

Plaintiff’s appeal is interlocutory.

      An interlocutory order is generally not immediately appealable. N.C. Gen.

Stat. § 1A-1, Rule 54(b) (2013); Earl v. CGR Dev. Corp., ___ N.C. App. ___, ___, 773

S.E.2d 551, 553 (2015). “The prohibition against appeals from interlocutory orders

prevents 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.”

Feltman v. City of Wilson, ___ N.C. App. ___, ___, 767 S.E.2d 615, 618-19 (2014)

(internal citations and quotation marks omitted). However,



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                                   Opinion of the Court



             there are two avenues by which a party may immediately
             appeal an interlocutory order or judgment. First, if the
             order or judgment is final as to some but not all of the
             claims or parties, and the trial court certifies the case for
             appeal pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), an
             immediate appeal will lie. Second, an appeal is permitted
             under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1) if the
             trial court’s decision deprives the appellant of a substantial
             right which would be lost absent immediate review.

Id. at ___, 767 S.E.2d at 619. Here, the order appealed from contains no Rule 54(b)

certification by the trial court. The appealing party carries the burden to establish

loss of a substantial right unless an immediate appeal is allowed. Embler v. Embler,

143 N.C. App. 162, 166, 545 S.E.2d 259, 262 (2001). A substantial right is affected

when “there are overlapping factual issues between the claim determined and any

claims which have not yet been determined because such overlap creates the potential

for inconsistent verdicts resulting from two trials on the same factual issues.” Liggett

Group Inc. v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 677 (1993) (citation and

quotation marks omitted).

      Plaintiff argues the trial court’s order deprives him of a substantial right and

is immediately appealable.       He asserts the outcome of two of Defendant’s

counterclaims is “dependent upon the Court’s determination of whether [the

property] immediately vested in Plaintiff, and as such, was never a part of [Lloyd’s]

estate.”

      “[W]hen common fact issues overlap the claim appealed and any remaining

claims, delaying the appeal until all claims have been adjudicated creates the

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                                   Opinion of the Court



possibility the appellant will undergo a second trial of the same fact issues if the

appeal is eventually successful.” Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 25,

376 S.E.2d 488, 491 (1989). This potential “creat[es] the possibility that a party will

be prejudiced by different juries in separate trials rendering inconsistent verdicts on

the same factual issue.” Id. (alteration in original) (citation and quotation marks

omitted).

      Plaintiff cites Lamb v. Lamb, 92 N.C. App. 680, 375 S.E.2d 685 (1989) to show

his substantial rights are affected. In Lamb, the plaintiff filed an action for malicious

prosecution in response to the issuance and subsequent dismissal of a criminal

warrant issued upon the defendant’s demand against the plaintiff. Id. at 681, 375

S.E.2d at 685.     In response, the defendant filed counterclaims requesting the

imposition of a constructive trust on certain monies received by the plaintiff, allegedly

belonging to the defendant. Id.

      The trial court entered summary judgment for the plaintiff and dismissed the

defendant's counterclaims. The defendant appealed. Id. Our Court held the ruling

below affected a substantial right and was immediately appealable and found “the

factual issue of whether the plaintiff did forge defendant's name on the check received

by the plaintiff. . . [was] central to both the complaint and one of the counterclaims.”

Id. at 683, 375 S.E.2d at 687. A possibility existed that denial of the appeal “could




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                                   Opinion of the Court



result in two juries in separate trials reaching different resolutions of this same

issue.” Id.

                          C. No Risk of Inconsistent Verdicts

       No factual issue exists that is central to both Plaintiff’s claim and Defendant’s

counterclaims, which could result in inconsistent verdicts.            Defendant’s first

counterclaim alleges Plaintiff converted her household tools, automotive tools, and

automotive parts, took apart Defendant’s vehicles and rendered them useless. These

allegations do not have any facts overlapping with Plaintiff’s original claim.

Defendant’s second and third counterclaims assert, “in the alternative,” should

Plaintiff be entitled to judgment on his claims, Defendant is entitled to a life estate

in the property, betterments, and claim to rents.

       Whether N.C. Gen. Stat. § 31-5.5 immediately vested Plaintiff with an interest

in Lloyd’s property is central to Plaintiff’s original claim and Defendant’s second and

third counterclaim. Plaintiff correctly acknowledges on appeal this is a question of

law for the Court’s determination. “Proper interpretation of statutory provisions

presents a question of law, not fact.” Griffith v. N.C. Dep’t of Corr., 210 N.C. App. 544,

552, 709 S.E.2d 412, 419 (2011) (citation omitted); see also Wood v. J.P. Stevens &

Co., 297 N.C. 636, 642, 256 S.E.2d 692, 696 (1979) (noting that “the construction of a

statute is ultimately a question of law for the courts”). No possibility exists that




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                                   Opinion of the Court



dismissal of this appeal could result in two juries in separate trials reaching different

resolutions of the same issue.

      The issue common to Plaintiff’s claim and Defendant’s counterclaims is a

question of law, not fact. Unlike the facts in Lamb, where one jury could determine

the plaintiff did forge the defendant’s name and a subsequent jury could determine

that he did not, no possibility exists that the trial court would find N.C. Gen. Stat. §

31-5.5 did not immediately vest Plaintiff with a right to share in Lloyd’s estate for

the purpose of his claim, but did vest Plaintiff with a right to share in Lloyd’s estate

for the purpose of determining Defendant’s second and third counterclaims.

                                     V. Conclusion

      Plaintiff’s appeal is interlocutory and does not affect a substantial right that

cannot be ameliorated on appeal from a final judgment.             Plaintiff’s appeal is

dismissed.

      DISMISSED.

      Judges BRYANT and GEER concur.

      Report per Rule 30(e).




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