An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1467
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


LCA DEVELOPMENT, LLC,

      Plaintiff,

      v.                                      Pitt County
                                              No. 12 CVS 3376
WMS MANAGEMENT GROUP, LLC,

      Defendant.


      Appeal by plaintiff from order entered 4 October 2013 by

Judge Alma L. Hinton in Pitt County Superior Court.                      Heard in

the Court of Appeals 6 May 2014.


      Jordan Price Wall Gray Jones & Carlton, by Philip W. Paine,
      for plaintiff-appellant.

      Lanier, King & Paysour, PLLC, by Steven F. Johnson II, for
      defendant-appellee.


      HUNTER, Robert C., Judge.


      LCA    Development,       LLC    (“plaintiff”)       appeals     the    order

granting WMS Management Group, LLC’s (“defendant’s”) motion for

judgment on the pleadings.            On appeal, plaintiff argues that the

trial   court    erred    by   concluding     that    plaintiff     breached    the

agreement by failing to comply with the default provisions of
                                     -2-
the contract and that defendant was entitled to judgment as a

matter of law.

    After      careful   review,    we   dismiss   plaintiff’s     appeal   as

interlocutory.

                               Background

    Plaintiff owns two residential apartment complexes in Pitt

County, North Carolina (“the properties”).           Defendant is a North

Carolina company that specializes in property management.              On or

about 31 December 2011, plaintiff entered into an “Exclusive

Property Management Agreement” (“the agreement”) with defendant.

The agreement provided that defendant would, among other things:

manage   the    properties;   use    its   “best   efforts”   to    solicit,

secure, and maintain tenants; and collect all rents due.                With

regard to default, the agreement, in paragraph 20, specifically

provided that:

            If either party defaults in the performance
            of any of its obligations hereunder, in
            addition to any other remedies provided
            herein or by applicable law, the non-
            defaulting party shall have the right to
            terminate this Agreement, if, within thirty
            days after providing the defaulting party
            with written notice of the default and the
            intent to terminate, the default remains
            uncured.

Moreover, the agreement provided that plaintiff would:

            Indemnify and hold [defendant] harmless to
                                         -3-
            the extent allowable by law from any and all
            costs, expenses, attorneys’ fees, suits,
            liabilities, damages or claims for damages,
            including but not limited to, those . . . in
            any way relating to the management of the
            Property by Agent or the performance or
            exercise   of    any   duty,  obligation   or
            authority set forth herein or hereafter
            granted to [defendant], except to the extent
            that such may be the result of gross
            negligence    or    willful  or   intentional
            misconduct by [defendant].

Plaintiff claims that defendant failed to collect rents due from

the tenants and failed to use its best efforts to manage the

properties.

       On 31 December 2012, plaintiff filed a complaint against

defendant asserting a breach of contract claim.                    On 25 February

2013, defendant filed an answer, counterclaim, and motion to

dismiss for failure to state a claim upon which relief can be

granted.     With regards to its counterclaim, defendant contended

that   plaintiff     breached     its    contractual       obligations     by:   (1)

failing to first notify defendant in writing of a default and of

its intent to terminate the agreement; (2) failing to provide

defendant    30   days     to   cure    any     default    as   provided    in   the

agreement;    and    (3)   failing      to     indemnify    and    hold   defendant

harmless    for     conduct     not    amounting    to     gross   negligence     or

willful or intentional misconduct.                Plaintiff filed a response

to defendant’s counterclaim admitting that it did not provide
                                       -4-
any written notice of default with notification of its intent to

terminate the agreement nor did it provide defendant 30 days to

cure any default.

      On 30 August 2013, defendant filed a motion for judgment on

the   pleadings   on   its    breach   of    contract   counterclaim.   The

matter came on for hearing on 16 September 2013.                  The trial

court granted defendant’s motion for judgment on the pleadings.

Specifically, the trial court dismissed plaintiff’s claim for

breach of contract with prejudice and held that plaintiff is

liable to defendant on its counterclaim.                Moreover, the trial

court ordered a trial be held to determine the amount of damages

plaintiff is liable to defendant.             Before the trial on damages

occurred, plaintiff appealed.

                    Interlocutory Nature of Appeal

      First, it should be noted that plaintiff is appealing an

interlocutory order.         “An order is interlocutory if it is made

during the pendency of an action and does not dispose of the

case but requires further action by the trial court in order to

finally determine the entire controversy.”               Trivette v. Yount,

__ N.C. App. __, __, 720 S.E.2d 732, 734-35 (2011), affirmed in

part, reversed in part on other grounds, and remanded, 366 N.C.

303, 735 S.E.2d 306 (2012).            Here, because the trial court’s
                                          -5-
order did not dispose of the entire case and ordered the amount

of   defendant’s       damages    be    determined      at      a    trial,   it   is     an

interlocutory order.1

                   [I]mmediate   appeal  of   interlocutory
              orders and judgments is available in at
              least two instances.        First, immediate
              review is available when the trial court
              enters a final judgment as to one or more,
              but fewer than all, claims or parties and
              certifies there is no just reason for delay.
              N.C.G.S. § 1A-1, Rule 54(b) []. . . .
              Second, immediate appeal is available from
              an interlocutory order or judgment which
              affects a “substantial right.”

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579

(1999) (internal citations omitted).                    Because the trial court

did not certify its order as immediately appealable pursuant to

Rule   54(b),    the    burden    is    on    plaintiff      to      establish     that    a

substantial right will be lost if the trial court’s order is not

immediately reviewed.         Turner v. Norfolk S. Corp., 137 N.C. App.

138,   142,    526   S.E.2d      666,   670     (2000);    see       also   Jeffreys      v.

Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d

252, 254 (1994) (“It is not the duty of this Court to construct

arguments for or find support for appellant’s right to appeal

from   an   interlocutory        order;      instead,     the       appellant    has    the



1
  In its brief, defendant claims that the trial court has stayed
the trial on damages pending the appeal.     However, this fact
cannot be verified by the record.
                                            -6-
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.”).

Plaintiff has failed to put forth any argument that this Court’s

failure to review the order immediately would deprive it of a

substantial right; in fact, plaintiff’s brief fails to include a

statement of grounds for appellate review or even mention that

the    order     is    interlocutory.           Furthermore,      even        if   plaintiff

included       an     argument     that   the     order    affected       a    substantial

right, this Court has repeatedly held that “[i]t is well settled

that    a   judgment       which      determines    liability       but       which   leaves

unresolved the amount of damages is interlocutory and cannot

affect a substantial right[.]”                   Steadman v. Steadman, 148 N.C.

App.   713,      714,     559    S.E.2d   291,     292    (2002);       see    also   Tridyn

Indus., Inc. v. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d

443, 447 (1979) (holding that the trial court’s order granting

summary judgment as to liability but ordering a trial as to the

amount      of      damages     was    interlocutory       and    did     not      affect    a

substantial right).              Accordingly, plaintiff is appealing a non-

appealable interlocutory order, and we dismiss the appeal.

                                        Conclusion
                               -7-
    Because the trial court’s order is interlocutory and does

not affect a substantial right, we dismiss plaintiff’s appeal.



    DISMISSED.

    Judges McGEE and ELMORE concur.

    Report per Rule 30(e).
