                                  NO. COA14-329

                       NORTH CAROLINA COURT OF APPEALS

                           Filed: 21 October 2014


SUZANNE DAVIS CAMPBELL,
     Plaintiff,

    v.                                     Forsyth County
                                           No. 13 CVD 3111
WILLIAM TAYLOR CAMPBELL, III,
     Defendant.


    Appeal by plaintiff from order entered 21 October 2013 by

Judge   William   B.   Reingold    in   Forsyth   County   District   Court.

Heard in the Court of Appeals 11 September 2014.


    Allman Spry Davis Leggett & Crumpler, P.A., by Joslin
    Davis, Loretta C. Biggs and Anna E. Warburton, for
    plaintiff-appellant.

    Wilson, Helms & Cartledge, LLP, by Gray Wilson and Lorin J.
    Lapidus, and Morrow, Porter, Vermitsky & Fowler, PLLC, by
    John F. Morrow, Sr. and John C. Vermitsky, for defendant-
    appellee.


    DIETZ, Judge.


    Plaintiff Suzanne Davis brings this interlocutory appeal

from the trial court’s order vacating her judgment of absolute

divorce under Rule 60(b) of the Rules of Civil Procedure.               The

trial court, exercising its discretion under Rule 60(b), set

aside Ms. Davis’ divorce judgment so that her ex-husband William
                                          -2-
Campbell     could       assert     a     belated     claim     for     equitable

distribution.

    This Court has held that an appeal from a trial court order

setting aside an absolute divorce judgment “is interlocutory and

subject to dismissal.”            See Baker v. Baker, 115 N.C. App. 337,

339, 444 S.E.2d 478, 480 (1994).                Applying this precedent, our

Court recently granted a motion to dismiss for lack of appellate

jurisdiction in an appeal with facts nearly identical to those

presented here.      See Steele v. Steele, No. COA 14-231 (N.C. App.

2014).     Mr. Campbell did not file a motion to dismiss this

appeal, but we are obliged to review our own jurisdiction in

every    case.      We   hold     that,    although   there     may    be   factual

circumstances in which the grant of a Rule 60(b) motion setting

aside a divorce judgment affects a substantial right, Ms. Davis

did not make a sufficient showing in this case.                 Accordingly, we

dismiss this appeal for lack of jurisdiction.

                             Factual Background

    After a decade of marriage, Plaintiff Suzanne Davis and

Defendant William Campbell separated on 11 May 2012.                         On 16

November    2012,    Ms.    Davis       filed   a   complaint    for    equitable

distribution, among other claims.               Mr. Campbell filed an answer

and counterclaim in that action, but mistakenly failed to assert
                                            -3-
his own claim for equitable distribution.                      Both parties engaged

in several months of vigorous discovery and motions practice on

the issue of equitable distribution.

       On 13 May 2013, Ms. Davis filed a separate complaint for

absolute divorce and to resume use of her maiden name.                                   On 1

July 2013, the trial court granted Ms. Davis’ unopposed motion

for summary judgment on that absolute divorce claim.

       At some point during this process, Ms. Davis determined

that   it    was    no    longer    in   her     interests     to    pursue      equitable

distribution, although neither party’s brief explains precisely

why this was so.           Just over a month after obtaining her absolute

divorce judgment, Ms. Davis voluntarily dismissed her equitable

distribution claim.              Under North Carolina law, the entry of an

absolute      divorce      judgment      bars    any    new   claims       for   equitable

distribution.            See N.C. Gen. Stat. § 50-11(e) (2013).                          As a

result,      although      Mr.    Campbell      still    desired     to     complete      the

equitable distribution process, Ms. Davis’ voluntary dismissal

of her own claim (the only pending equitable distribution claim)

permanently ended all equitable distribution litigation.

       Mr.    Campbell      promptly      filed    a    motion      to    set    aside    the

divorce      judgment      under     Rule       60(b)   of    the        Rules   of   Civil

Procedure.         He contended that his failure to timely assert his
                                     -4-
own    claim    for   equitable   distribution     before   entry   of    the

absolute divorce judgment was the result of excusable neglect.

Specifically, he asserted that, at the time he filed his initial

counterclaim in the equitable distribution action, his counsel

had recently given birth to a premature baby who weighed less

than    two    pounds.     The    child    was   hospitalized   with     life-

threatening conditions through much of this litigation.                   Mr.

Campbell argued that he instructed his counsel to file a claim

for equitable distribution and that his counsel, distracted by

her newborn’s medical needs, mistakenly thought she had done so.

       On 21 October 2013, the trial court granted Mr. Campbell’s

Rule 60(b) motion in an order containing detailed findings of

fact and conclusions of law.          The court set aside the absolute

divorce judgment and ordered Mr. Campbell to file an answer and

counterclaim for equitable distribution within 30 days.                   Ms.

Davis appealed the trial court’s order that same day.                     This

Court allowed Ms. Davis’ petition for a writ of supersedeas and

stayed the trial court’s Rule 60(b) order pending disposition of

this appeal.

                                  Analysis

       Ordinarily, this Court hears appeals only after entry of a

final judgment that leaves nothing further to be done in the
                                         -5-
trial court.    See Steele v. Hauling Co., 260 N.C. 486, 491, 133

S.E.2d 197, 201 (1963).           An interlocutory order entered before

final    judgment    is      immediately         appealable         “in   only    two

circumstances: (1) if the trial court has certified the case for

appeal under Rule 54(b) of the Rules of Civil Procedure; and (2)

when the challenged order affects a substantial right of the

appellant    that    would       be     lost   without      immediate        review.”

Robinson v. Gardner, 167 N.C. App. 763, 767, 606 S.E.2d 449, 452

(2005) (quotation marks omitted).

    The     trial   court’s      Rule    60(b)    order   in    this      case   is   a

textbook example of a non-final, interlocutory order; it took an

otherwise final judgment and re-opened it, requiring “further

action by the trial court in order to settle and determine the

entire controversy.”         Veazey v. City of Durham, 231 N.C. 357,

362, 57 S.E.2d 377, 381 (1950); see also Metcalf v. Palmer, 46

N.C. App. 622, 624, 265 S.E.2d 484, 484 (1980) (holding that

orders   granting    a    Rule    60(b)    motion    are,      by    their   nature,

interlocutory).      Thus, the trial court’s order in this case is

appealable only if it is properly certified under Rule 54(b) or

if it affects a substantial right.

    Ms. Davis first asserts that the trial court’s order is

appealable because “[t]he trial court entered a Certification of
                                 -6-
Order for Immediate Appeal” under Rule 54(b) in this case.                And,

indeed, the trial court entered an order in this case entitled

“Certification of Order for Immediate Appellate Review.”                  That

order purports to authorize an immediate appeal under Rule 54(b)

of the Rules of Civil Procedure.

    But Rule 54(b) does not apply here.            Under Rule 54(b), a

trial court may certify a case for immediate appeal when it

enters “a final judgment as to one or more but fewer than all of

the claims or parties” in the case.       See N.C. Gen. Stat. § 1A-1,

Rule 54(b).     The Rule 60(b) order from which Ms. Davis appeals

did not enter a final judgment on some but not all claims;

rather, it set aside an earlier final judgment under Rule 60(b),

re-opening the case in its entirety.           Thus, the trial court’s

order could not properly be certified under Rule 54(b).

    It    is    well-settled   that    the     trial    court’s    mistaken

certification    of   a   non-final    order    under    Rule     54(b)     is

ineffective and does not confer appellate jurisdiction on this

Court.   See, e.g., First Atl. Mgmt. Corp. v. Dunlea Realty Co.,

131 N.C. App. 242, 248, 507 S.E.2d 56, 61 (1998).            Accordingly,

we reject Ms. Davis’ argument that her appeal is properly before

us based on the trial court’s improper Rule 54(b) certification.
                                           -7-
     Next, Ms. Davis asserts that the trial court’s Rule 60(b)

order affects a substantial right.                  This Court, and our Supreme

Court,    repeatedly        have   held    that     Rule      60(b)    motions    setting

aside the entry of summary judgment (as happened here) do not

affect a substantial right.                  See,      e.g.,    Waters v. Qualified

Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 344 (1978);

Braun v. Grundman, 63 N.C. App. 387, 388, 304 S.E.2d 636, 637

(1983); Robinson v. Gardner, 167 N.C. App. 763, 768, 606 S.E.2d

449, 452 (2005).             In Baker, this Court acknowledged that an

appeal from a “trial court’s order setting aside the judgment of

absolute divorce and permitting defendant to file her answer and

counterclaim for equitable distribution” was “interlocutory and

subject to dismissal.”             115 N.C. App. at 339, 444 S.E.2d at 480.

Relying    on    this      precedent,      this    Court      recently      dismissed     an

appeal    from   a    Rule    60(b)     order     in    an    absolute      divorce     case

involving facts nearly identical to both Baker and the present

case.    See Steele v. Steele, No. COA 14-231 (N.C. App. 2014).

     Ms. Davis argues that this precedent is not controlling

because the trial court’s Rule 60(b) order is “analogous” to the

denial of a motion based on collateral estoppel, which affects a

substantial      right.        See    Hillsboro         Partners      LLC   v.    City    of

Fayetteville,        ___    N.C.    App.    ___,       ___,    738    S.E.2d     819,    823
                                            -8-
(2013).        This is so, according to Ms. Davis, because of the

effect of Section 50-11(e) of the General Statutes.                                   Section 50-

11(e) states that “[a]n absolute divorce obtained within this

State     shall    destroy       the    right      of     a     spouse           to       equitable

distribution      .   .   .    unless      the    right        is       asserted          prior    to

judgment    of    absolute     divorce.”           N.C.       Gen.       Stat.        §    50-11(e)

(2013).        Ms. Davis argues that the trial court’s Rule 60(b)

order is immediately appealable because, as a consequence of

§ 50-11(e) and the entry of her absolute divorce judgment, Mr.

Campbell was “effectively collaterally estopped as a matter of

law from asserting a new equitable distribution claim.”

    We cannot accept this argument because it ignores why our

appellate       courts    hold      that       denial     of        a    motion           based   on

collateral      estoppel      affects      a   substantial              right.         Collateral

estoppel is intended to “prevent repetitious lawsuits.”                                      Turner

v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773

(2009).     It ensures that parties (or those in privity) are not

forced    to    re-litigate        issues      that     were    fully        litigated            and

actually       determined     in    previous       legal       actions.                Id.        Our

appellate courts have concluded that an order denying a motion

based on collateral estoppel is immediately appealable because
                                       -9-
“parties have a substantial right to avoid litigating issues

that have already been determined by a final judgment.”                  Id.

    That is not the situation here.               The trial court’s order

will not force Ms. Davis to re-litigate equitable distribution

issues that already were determined by a court in an earlier

proceeding.     Indeed, in the only similar proceeding between the

parties,     Ms.     Davis    voluntarily      dismissed        her    equitable

distribution claim, preventing the trial court from determining

that issue on the merits.

    In effect, Ms. Davis argues not that she is compelled to

re-litigate    an    issue   previously      determined    by    a    court,   but

instead that she must fully litigate—for the first time—an issue

that she thought was precluded by the judgment she obtained.

But that argument can be made in virtually every Rule 60(b) case

and our appellate courts have long rejected it as a basis for

immediate appeal.         See Waters, 294 N.C. at 208, 240 S.E.2d at

344; Robinson, 167 N.C. App. at 768, 606 S.E.2d at 452.                         In

short,     because   no    court   has   yet    adjudicated      the     parties’

equitable    distribution     claim,     Ms.   Davis   cannot     rely    on   our

collateral estoppel precedent to immediately appeal the trial

court’s Rule 60(b) order.
                                                -10-
      Ms. Davis also argues that the trial court’s order results

in “the possibility of having to litigate two separate equitable

distribution        cases       on        the    same     claims      with    inconsistent

verdicts.”          But     Ms.       Davis      voluntarily         dismissed     her    own

equitable     distribution            claim       after       obtaining      her   absolute

divorce judgment—meaning there was no verdict on that claim.

See   N.C.    Gen.       Stat.       § 1A-1,      Rule       41(a)   (dismissal     without

prejudice is not “an adjudication upon the merits”).                                   Simply

put, the trial court’s Rule 60(b) order does not expose Ms.

Davis   to        the    risk        of     a    second,       inconsistent        equitable

distribution verdict because there was never a first equitable

distribution verdict.

      Finally, Ms. Davis argues that she might “be forced to take

steps to invalidate the true representations she has made in

reliance     on    the    Divorce         Judgment      to    establish      herself     as   a

single individual.”          But she does not explain how changing those

“true representations” about her marital status would rise to

the level of affecting a substantial right.                           From this record,

it is impossible to tell whether this would be a complicated

process or something as simple as filling out some additional

paperwork.        As this Court has repeatedly held, “[i]t is not the

duty of this Court to construct arguments for or find support
                                              -11-
for appellant’s right to appeal from an interlocutory order;

instead, the appellant has the burden of showing this Court that

the order deprives the appellant of a substantial right which

would       be    jeopardized          absent      a    review     prior      to        a    final

determination on the merits.”                      Jeffreys v. Raleigh Oaks Joint

Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994).

       Moreover, Ms. Davis has provided no reason why she could

not renew her motion for entry of the absolute divorce judgment

as     soon      as    Mr.    Campbell       asserts        his   claim      for    equitable

distribution.            The trial court already considered and granted

that    motion         once   before,       and    likely    would      do   so    promptly      a

second time.            Thus, the time period in which Ms. Davis would be

deprived of her previously entered divorce judgment likely would

be exceedingly short.                 Ms. Davis offers no evidence or argument

to the contrary.              Accordingly, we hold that Ms. Davis “has not

met [her] burden of showing this Court that the order deprives

[her] of a substantial right.”                       Allen v. Stone, 161 N.C. App.

519, 522, 588 S.E.2d 495, 497 (2003).

       In     dismissing        this       appeal,     we    do   not    suggest        that     no

litigant         can    satisfy   the       substantial       rights     test      in       similar

circumstances.               We can imagine a number of specific factual

circumstances           in    which    a    Rule     60(b)    motion     setting        aside     a
                                        -12-
judgment for absolute divorce, and effectively remarrying the

parties, might affect a substantial right.                 But “[t]he extent to

which an interlocutory order affects a substantial right must be

determined on a case-by-case basis.”                  Hamilton v. Mtge. Info.

Serv., Inc., 212 N.C. App. 73, 78, 711 S.E.2d 185, 189 (2011).

Here, as in the Steele appeal that we dismissed several months

ago, the appellant did not make a sufficient showing to satisfy

the substantial rights test.

                                      Conclusion

       For the reasons discussed above, we dismiss this appeal for

lack of appellate jurisdiction.                We also decline           Ms. Davis’

request to construe her appellate filings as a petition for a

writ    of   certiorari.        Ms.    Davis   will   have   a    full    and   fair

opportunity for appellate review of the trial court’s Rule 60(b)

order    after   entry     of   final    judgment     in   this   case.         Thus,

certiorari is not appropriate here.                See Sood v. Sood, ___ N.C.

App. ___, ___, 732 S.E.2d 603, 609, appeal dismissed, 366 N.C.

417, 735 S.E.2d 336 (2012).

       DISMISSED.

       Judges STEELMAN and GEER concur.
