An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-199
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 October 2014


SANDY GROVE BAPTIST CHURCH, LISA
BARNES, JACKIE HAGWOOD (on behalf
of the Family of Shelby Jean
Mosley),
     Plaintiffs

      v.                                      Nash County
                                              No. 11 CVS 1177
BETTY JOYCE FINCH,
     Defendant.


      Appeal by plaintiffs from order entered 10 September 2013

by Judge Marvin K. Blount, III in Nash County Superior Court.

Heard in the Court of Appeals 13 August 2014.


      Newton & Lee, PLLC,            by   E.S.    “Buck”     Newton,    III,    for
      plaintiffs-appellants.

      Etheridge, Hamlett & Murray, LLP, by Ernie K. Murray, for
      defendant-appellee.


      HUNTER, Robert C., Judge.


      Sandy    Grove    Baptist    Church    (“Sandy    Grove”),     Lisa   Barnes

(“Ms. Barnes”), and Jackie Hagwood (“Ms. Hagwood”) (collectively

“plaintiffs”) appeal from an interlocutory order denying their

motion for partial summary judgment and granting partial summary
                                     -2-
judgment   in   favor   of   Betty   Joyce   Finch   (“defendant”).   On

appeal, plaintiffs argue that the trial court erred by denying

their motion for partial summary judgment because there exist no

genuine issues of material fact and plaintiffs are entitled to

judgment as a matter of law on their claim for rescission of

deed and quiet title; they further argue that summary judgment

for defendant was improper on Ms. Hagwood’s claim of intentional

infliction of emotional distress (“IIED”) because genuine issues

of material fact exist as to whether Ms. Hagwood suffered severe

emotional distress as a result of defendant’s conduct.

    After careful review, we dismiss plaintiffs’ appeal.

                               Background

    This cause of action concerns a 2-acre tract of land in

Nash County, North Carolina deeded on 2 June 1823 from Archibald

Lemon to Osborn Strickland, in his capacity as representative of

the members of the Baptist Church at Lemon’s Meeting House.

This “indenture” was recorded at Book 11, page 101 of the Nash

County Registry and reads as follows:

           This indenture made this 2nd day of June of
           1823 between Arch Lamon of the County of
           Nash and State of North Carolina of the one
           part and Osbon Strickland of for and in
           behalf of the members of the Baptist Church
           at Lamon’s Meeting House of the other part
           Witnesseth that I the said Arch Lamon doth
           hereby freely give grant and confirm unto
                                   -3-
           the said Osbon Strickland in behalf of the
           members of the said Church at Lamon’s
           Meeting House two acres of land around the
           said Meeting House on the north side of the
           roads so as to contain an equal distance in
           front of the road from each end of the House
           for the sole purpose and accommodation of
           the church and for no other purpose whatever
           so long as the same shall be used as a place
           of Preaching or public worship by the Church
           thereof and no longer and I the said Arch
           Lamon doth for myself and my heirs hereby
           warrant and defend this said described land
           unto the said Osbon Strickland for the above
           named purpose and not otherwise against the
           claim of any person whatever . . . .

    Sometime after the filing of this indenture, the Baptist

Church at Lemon’s Meeting House changed its name to Sandy Grove

Baptist Church.        In 1914, A.T. Strickland, A.J. Chamblee, and

Geo W. Morgan, as “members and deacons of Sandy Grove Baptist

Church,”   filed   a   petition   in   Nash    County   Superior   Court   to

establish a dividing line between the tract owned by Sandy Grove

and that belonging to the surrounding landowners, J.W. Finch and

his wife, Alice Finch – defendant’s ancestors.             The petitioners

identified the tract that they claimed for the church as that

“conveyed by Archbale Lemon” and “recorded in book 11, at page

101, Nash Registry.”        The Finches did not dispute that Sandy

Grove owned an adjoining tract of land; they merely disputed the

metes and bounds that it claimed.             A surveyor was appointed by

the trial court to determine the contested boundary, and after
                                         -4-
the survey was completed, the parties agreed to a specified

dividing      line.      The   parties   then       entered     into   a    settlement

agreement and the trial court entered a judgment on 9 October

1915 incorporating the surveyor’s plat and adopting the metes

and bounds description of the property contained therein.

       According to Sandy Grove’s records, the church continued to

operate from 1915 until around the 1980’s.                      The extent of the

church’s      religious     services     after      the     1980’s     is    disputed.

Around this time, an unidentified member of Sandy Grove entered

into    its    records    that   its    membership        had   dwindled     to   three

members and that the last service occurred on 1 May 1985.                          The

records also contain the following notation: “no longer able to

hold services.        May the Lord be with this old church house and

the few sisters.         Books closed.”

       Defendant is in her seventies; she is a member of the Finch

family and testified in deposition that she lived across the

Sandy Grove property within eyesight of the church her entire

life.         She   testified    that    as    of     2005,     the    building    was

dilapidated and in a state of severe disrepair.                            She claimed

that the pews, pulpit, and furniture had been removed from the

building, the chimney had fallen in, the roof and windows were

broken, and there was an unmaintained open well on the property.
                                       -5-
Ms.   Barnes,     one   of   the   named   plaintiffs,   admitted   that   the

building was in disrepair in 2005 but could neither confirm nor

deny the extent of the damage.

      On 19 April 2005, the descendants of J.W. and Alice Finch

filed a deed in Nash County purporting to convey the Sandy Grove

tract     to    defendant    and   defendant’s    sister   (“the    purported

deed”).    The instrument contained the following language:

               WHEREAS, by instrument dated June 2, 1823,
               recorded in Book 11, page 101, Nash County
               Public Registry, Archibald Leamon, executed
               an Indenture to Osborne Strickland for and
               on behalf of the members of the Baptist
               Church at Leamon’s Meeting House, 2 acres of
               land providing in said instrument “for the
               sole purpose and accommodation of the church
               and for no other purpose whatsoever as [sic]
               long as the same shall be used as a place of
               preaching or public worship by the church
               whereas, and no longer”; and,

               WHEREAS, through various ownership changes
               and transfers through the years of the
               parent tract of land from which the 2 acre
               tract was carved, the Grantors herein are
               the owners of that portion of the 1823
               parent tract from which the hereinafter
               described 2 acres was carved, and,

               WHEREAS, the 2-acre tract of land has been
               abandoned, the structure thereon is in
               disrepair, no church service has been held
               or conducted in at least 40 years, that the
               last church to use the facility as a church
               and place of worship was the Sandy Grove
               Baptist Church, which ceased to exist more
               than 40 years ago and there are no known
               Trustees, Board of Deacons, Pastors, church
                                           -6-
             officials or any other officers of the
             church and none has been known to exist for
             more than 40 years; and,

             WHEREAS, by the reverter (reversion) clause
             in   said    1823    instrument    hereinabove
             mentioned, title to the lands herein has
             reverted to the Grantors herein and the
             Grantors desire to convey their interest in
             the   lands    described    herein    to   the
             Grantees[.]

Defendant’s     sister       died    in   2006,     leaving     defendant         with   the

entire      interest    in    the     tract.           After   continued         years    of

disrepair, defendant had the Sandy Grove building demolished in

2011 and posted “No Trespassing” signs throughout the grounds.

      Ms.    Hagwood    testified         in   deposition       that    her      aunt    had

indicated     in   writing     a     desire    to      be   buried     at    Sandy   Grove

cemetery.      She testified that after her aunt died in January

2011, she tried to arrange a burial at Sandy Grove but was

refused     access     to    the    cemetery      by    defendant.          Ms.    Hagwood

further testified that as a result of being unable to fulfill

her   aunt’s       wishes,          she   experienced          bouts        of    anxiety,

hopelessness, headaches, and lost sleep.

      On 11 July 2011, plaintiffs filed suit against defendant.

In their amended complaint, plaintiffs listed six total claims:

(1) declaratory judgment that Sandy Grove is the owner of the

disputed property in fee simple; (2) rescission of the purported
                                         -7-
deed to defendant and quiet title for Sandy Grove; (3) access to

cemetery under N.C. Gen. Stat. § 65-102 (2013); (4) trespass and

damage   to   property;     (5)    intentional     infliction    of    emotional

distress    on   Ms.    Hagwood;   and    (6)   injunctive   relief.      On    30

November 2012, plaintiffs filed a motion for summary judgment.

Defendant filed a cross motion for summary judgment for all

claims on 13 February 2012.           According to plaintiffs’ Motion for

Specific Findings entered 30 August 2013, a hearing was held on

the parties’ motions for summary judgment on 24 June 2013.                      No

transcript of this hearing has been filed with this Court.

      On 10 September 2013, the trial court entered an order

denying plaintiffs’ motion for “partial summary judgment” and

granting summary judgment for defendant on Ms. Hagwood’s IIED

claim.     The trial court ruled that there existed genuine issues

of material fact precluding summary judgment for defendant on

the   remaining        claims   and   precluding     summary     judgment      for

plaintiffs on the unspecified claims for which their purported

motion for “partial” summary judgment applied.                  It is unclear

from the order which of the six claims were the subject of

plaintiffs’      motion   for   partial    summary   judgment.        Plaintiffs

filed timely notice of appeal from this order.

                                   Discussion
                                         -8-
                      I. Grounds for Appellate Review

    Plaintiffs first argue that the trial court’s interlocutory

order   is    immediately     appealable       because   a   substantial    right

would be deprived without immediate review.               We disagree.

        “An interlocutory order is one made during the pendency of

an action, which does not dispose of the case, but leaves it for

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).                         Orders that

either deny summary judgment or grant partial summary judgment

are interlocutory.         See North Carolina Dept. of Transp. v. Page,

119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995).                   “Generally,

there is no right of immediate appeal from interlocutory orders

and judgments.”        Goldston v. Am. Motors Corp., 326 N.C. 723,

725, 392 S.E.2d 735, 736 (1990).               However, immediate appeal of

an interlocutory order is available where: (1) the trial court

certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-

1, Rule 54(b) (2013); or (2) the order deprives the appellant of

a substantial right under N.C. Gen. Stat. § 1-277(a) (2013)

which would be lost without immediate review.                    Page, 119 N.C.

App. at 734, 460 S.E.2d at 334.
                                                 -9-
       Because the trial court here did not certify this case for

immediate       appeal     under         Rule       54(b),      plaintiffs          argue    that

immediate review is appropriate because the trial court’s order

affects a substantial right.                   At the outset, we note that at no

point    in     plaintiffs’        brief       do   they       attempt      to     argue    how   a

substantial right would be deprived without immediate review of

the trial court’s order granting partial summary judgment for

defendant on Ms. Hagwood’s IIED claim.                              “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 burden of showing this Court that

the order deprives the appellant of a substantial right . . . .”

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

444    S.E.2d     252,    254      (1994).             Thus,    we     dismiss      plaintiffs’

arguments       pertaining         to    the     trial     court’s         grant    of     summary

judgment on the IIED claim.                      See id.; see also State ex rel.

City of Charlotte v. Hidden Valley Kings, __ N.C. App. __, __,

__     S.E.2d     __,    __     (2014)         (dismissing            appeal       because     the

appellants failed to argue that a substantial right would be

irrevocably       lost    absent         immediate       review       of    an    interlocutory

order).
                                             -10-
       Additionally,         we     dismiss      the    remaining      portions      of   the

appeal because plaintiffs have failed to demonstrate how the

trial     court’s      denial         of   their       motion   for    partial    summary

judgment affects a substantial right.

       “The purpose of the doctrine of res judicata is to protect

litigants      from    the     burden       of   relitigating      previously     decided

matters     and       to     promote         judicial      economy       by    preventing

unnecessary litigation.”                   Holly Farms Inc. v. Kuykendall, 114

N.C.    App.    412,    417,      442      S.E.2d   94,    97   (1994).        “Under     the

companion       doctrine       of      collateral        estoppel,      also    known     as

‘estoppel by judgment’ or ‘issue preclusion,’ the determination

of an issue in a prior judicial or administrative proceeding

precludes the relitigation of that issue in a later action . . .

.”     Urquhart v. East Carolina Sch. Of Med., __ N.C. App. __, __,

712 S.E.2d 200, 204 (2011).

        “Ordinarily, the denial of a motion for summary judgment

does not affect a substantial right so that an appeal may be

taken.”        Motyka v. Nappier, 9 N.C. App. 579, 582, 176 S.E.2d

858, 859 (1970).             However, the denial of a motion for summary

judgment based on the defenses of res judicata or collateral

estoppel       may    affect      a     substantial       right,      making   the    order

immediately appealable.                See Bockweg v. Anderson, 333 N.C. 486,
                                        -11-
491,   428    S.E.2d   157,    161   (1993);     see   also   Country   Club   of

Johnston Cnty., Inc. v. U.S. Fidelity and Guar. Co., 135 N.C.

App. 159, 167, 519 S.E.2d 540, 546 (1999).

       This   Court    has   recently    clarified     that   immediate   appeal

from such orders is not automatically allowed; the appellant

still bears the burden of demonstrating how the order affects a

substantial right:

              We acknowledge the existence of an apparent
              conflict in this Court as to whether the
              denial of a motion for summary judgment
              based on res judicata affects a substantial
              right   and    is  immediately    appealable.
              However, our Supreme Court has addressed
              this issue in Bockweg, and, like the panel
              in Country Club, “we do not read Bockweg as
              mandating in every instance immediate appeal
              of the denial of a summary judgment motion
              based upon the defense of res judicata. The
              opinion pointedly states reliance upon res
              judicata ‘may affect a substantial right.’”
              Country Club, 135 N.C. App. at 166, 519
              S.E.2d   at   545  (emphasis   in   original)
              (quoting Bockweg, 333 N.C. at 491, 428
              S.E.2d at 161).

Heritage Operating, L.P. v. N.C. Propane Exch., LLC, __ N.C.

App. __, __ n.2, 727 S.E.2d 311, 314 n.2 (2012).                 Thus, a party

seeking immediate appellate review of an order denying a motion

for    summary    judgment     based    on     res   judicata   or   collateral

estoppel must show “not only that one claim has been finally

determined and others remain which have not yet been determined,
                                      -12-
but that (1) the same factual issues would be present in both

trials and (2) the possibility of inconsistent verdicts on those

issues exists[.]”    Heritage Operating, L.P., __ N.C. App. at __,

727 S.E.2d at 314-15 (quoting Country Club of Johnston Cnty.,

135 N.C. App. at 167, 519 S.E.2d at 546 (emphasis in original)).

      Here, plaintiffs contend that the doctrines of res judicata

and   collateral   estoppel    both    work     to    prevent     defendant    from

contesting    plaintiffs’     claim    of     quiet    title.      Specifically,

plaintiffs argue that ownership of the property in question was

“previously resolved between the plaintiff Sandy Grove Baptist

Church and J.W. Finch” in the 1915 judgment.                    Thus, plaintiffs

argue because J.W. Finch is the grandfather of defendant and is

defendant’s   predecessor     in     title,    defendant    cannot       now   argue

that she has title to the land upon which Sandy Grove rests.

Plaintiffs further contend that if this matter is allowed to go

to trial, there exists the risk of a verdict inconsistent with

the 1915 judgment, which set the boundary between Sandy Grove’s

land and J.W. Finch’s land.             We do not find these arguments

persuasive.

      In 1915, members and deacons of Sandy Grove entered into a

consent   judgment   with     J.W.    Finch    to     determine    the    boundary

between their respective tracts of land.                 At no point was the
                                     -13-
type of interest that Sandy Grove held in the land in question.

In contrast, when defendant was purportedly deeded the land upon

which Sandy Grove rests in 2005, the basis for that conveyance

was the contention that Sandy Grove had been deeded a fee simple

determinable    by    Archibald    Lemon    in    1823,     not   a   fee   simple

absolute.       “A    fee   simple       determinable       estate    terminates

automatically upon the occurrence of [an] event, which gives

rise to [a] reverter[.]”          City of Charlotte v. Charlotte Park &

Recreation Comm'n, 278 N.C. 26, 31, 178 S.E.2d 601, 605 (1971).

“To create a fee simple determinable, the conveyance to the

grantee, A, must contain a phrase such as ‘so long as,’ ‘as long

as,’ ‘while,’ ‘during,’ or ‘until.’”                118 Am. Jur. Proof of

Facts 3d. 125.       Defendant contends that the language in the 1823

deed, “so long as the same shall be used as a place of Preaching

or public worship by the Church thereof and no longer,” created

a fee simple determinable that would revert title in the land to

the grantor should the property no longer be used as a place of

worship by Sandy Grove.       Thus, because Sandy Grove’s books were

closed   in   the    mid-1980’s    and   the     building    itself    fell   into

severe disrepair, defendant contends that Sandy Grove lost title

in the land because it no longer used the tract as a place of

preaching or public worship.
                                         -14-
       Regardless of the merits of these contentions, we conclude

that there is no risk of a verdict inconsistent with the 1915

judgment that would be sufficient to allow immediate appeal from

the trial court’s order.              Even if this matter were to go to a

jury and Sandy Grove were to lose title in the land as a result

of its failure to use the tract as a place for preaching or

public worship, such a result would not conflict with the 1915

judgment     setting      a   boundary      between    Sandy    Grove’s       and   J.W.

Finch’s respective tracts.             At no point in the 1915 proceeding

was    the   type   of    interest     in    Sandy    Grove’s       tract    addressed,

presumably because at the time it was a functioning church with

multiple members and deacons.                Thus, the facts and arguments in

the 1915 dispute are distinct and separate from those raised

here, removing the risk that an inconsistent verdict will be

entered should this matter proceed to trial.

       Accordingly, because plaintiffs, as the appellants, have

failed to carry their burden of demonstrating “the possibility

of    inconsistent       verdicts,”    Heritage       Operating,      L.P.,    __    N.C.

App. at __, 727 S.E.2d at 314-15, they have also failed to show

how the trial court’s order affects a substantial right.                            Thus,

dismissal of this appeal is proper. See Country Club of Johnston

Cnty.,   135   N.C.      App.   at    167,    519    S.E.2d    at    546    (dismissing
                               -15-
appeal taken from the denial of a motion for summary judgment

because the plaintiff could not demonstrate a possibility of

inconsistent verdicts if the case were to proceed to trial, and

thus failed to show how the order affected a substantial right

warranted immediate appeal).

                             Conclusion

    For the foregoing reasons, we dismiss plaintiffs’ appeal

from the trial court’s interlocutory order.



    DISMISSED.

    Judges DILLON and DAVIS concur.

    Report per Rule 30(e).
