An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-830
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


ESTATE OF RUBY SPAINHOUR MILLS, by
and through WILLIAM L. MILLS, III,
EXECUTOR,

       Plaintiff,

vs.                                           Cabarrus County
                                              No. 12 CVS 471
ESTATE OF HAROLD LUTHER MILLS, by
and through E. THOMAS HARTSELL,
EXECUTOR,

       Defendant.


       Appeal by Plaintiff from judgment entered 26 November 2012

by Judge Richard L. Doughton in Cabarrus County Superior Court.

Heard in the Court of Appeals 12 December 2013.


       Mills Law. P.A., by William L. Mills, III, for Plaintiff.

       Orsbon &       Fenninger     LLP,    by    R.    Anthony     Orsbon,     for
       Defendant.


       DILLON, Judge.


       The Estate of Ruby Spainhour Mills, by and through William

L.    Mills,   III,   Executor     (Plaintiff),      appeals    from   the    trial

court’s judgment dismissing its claims against the Estate of
                                        -2-
Harold Luther Mills, by and through E. Thomas Hartsell, Executor

(Defendant), pursuant to Rule 12(b)(6) of the North Carolina

Rules of Civil Procedure for failure to state a claim upon which

relief    could    be   granted.       After     careful      review,    we    dismiss

Plaintiff’s interlocutory appeal as premature.

                    I. Factual & Procedural Background

    On 10 February 2012, Plaintiff filed a complaint against

Defendant in Cabarrus County Superior Court, asserting a number

of claims relating to their joint ownership of a lake house

located    in     Mecklenburg      County      (the    Lake     House    property).

Specifically,       Plaintiff      requested,         inter     alia,     an     order

requiring Defendant to convey its interest in the Lake House

property to Plaintiff and to reimburse Plaintiff for Defendant’s

share of some of the Lake House property-related expenses.                          On

27 March 2012, Defendant filed an answer and a Rule 12(b)(6)

motion to dismiss Plaintiff’s complaint for failure to state a

claim    upon   which    relief    could    be    granted.       In     its    answer,

Defendant also asserted three counterclaims relating to their

joint ownership of the Lake House property, seeking affirmative

relief from Plaintiff in the form of monetary damages.                          On 26

November 2012, the trial court entered a judgment dismissing

Plaintiff’s       complaint     with   prejudice        on    grounds     that    the
                                        -3-
complaint failed to state a claim against Defendant upon which

relief    could   be   granted.        From     this    judgment   of    dismissal,

Plaintiff now appeals.

                                   II. Analysis

    The      threshold       question     is      whether      this     Court     has

jurisdiction over Plaintiff’s appeal.                  Though neither party has

raised this issue, it is well established that “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.”

Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980)

(citing Dickey v. Herbin, 250 N.C. 321, 108 S.E.2d 632 (1959);

Rogers v. Brantley, 244 N.C. 744, 94 S.E.2d 896 (1956)).

    A     judgment     of   the   Superior      Court    is   either    “final”   or

“interlocutory” in nature.             Veazey v. City of Durham, 231 N.C.

357, 361-62, 57 S.E.2d 377, 381 (1950).                   “A final judgment is

one which disposes of the cause as to all the parties, leaving

nothing to be judicially determined between them in the trial

court.”     Id.   An interlocutory judgment or order, in contrast,

“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
                                          -4-
controversy.”         Id.     While a party has an appeal “of right” to

this Court from a final judgment of the Superior Court, N.C.

Gen.    Stat.       §7A-27(b)(1)     (2011),     an   interlocutory     order   is

generally not immediately appealable, N.C. Gen. Stat. § 1A-1,

Rule 54(b) (2011).

       In Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App.

377,    444     S.E.2d        252    (1994),     we   described    the      narrow

circumstances under which an interlocutory ruling is immediately

appealable:

              “[I]n two instances a party is permitted to
              appeal interlocutory orders . . . .” First,
              a party is permitted to appeal from an
              interlocutory order when the trial court
              enters “a final judgment as to one or more
              but fewer than all of the claims or parties”
              and the trial court certifies in the
              judgment that there is no just reason to
              delay the appeal.       Second, a party is
              permitted to appeal from an interlocutory
              order when “the order deprives the appellant
              of a substantial right which would be
              jeopardized absent a review prior to a final
              determination on the merits.”    Under either
              of these two circumstances, it is the
              appellant’s burden to present appropriate
              grounds for this Court’s acceptance of an
              interlocutory   appeal    and   our   Court's
              responsibility to review those grounds.

Id.    at    379,    444    S.E.2d   at   253   (internal   citations     omitted)

(emphasis added).

       The    trial        court’s   judgment    of   dismissal,   from     which

Plaintiff      presently       appeals,    disposed    of   Plaintiff’s    claims
                                         -5-
against Defendant, but did not address Defendant’s counterclaims

against    Plaintiff.        There      is    no    indication,           based    upon       our

review of the record, that Defendant’s counterclaims have been

settled, dismissed, or otherwise disposed of.                            The trial court’s

judgment    is,    therefore,     interlocutory,           in       that    it    “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,   231    N.C.       at   362,       57    S.E.2d       at    381.

Furthermore, the trial court did not certify the judgment as

immediately       appealable,     N.C.       Gen.    Stat.      §    1A-1,       Rule       54(b)

(2011); and, significantly, Plaintiff makes no argument that the

judgment affects a “substantial right,” see Hyatt v. Town of

Lake Lure, 191 N.C. App. 386, 389, 663 S.E.2d 320, 322 (2008)

(citing Jeffreys, 115 N.C. App at 380, 444 S.E.2d at 254, in

dismissing interlocutory appeal where there was no Rule 54(b)

certification in the record, and the appealing party “neither

state[d] nor argue[d] that her appeal affect[ed] a substantial

right”).     As we stated in Hyatt, “[i]t is not the role of this

Court to create an avenue of appeal not properly asserted in

plaintiff’s brief.”          Id. (citing Jeffreys, 115 N.C. App at 380,

444 S.E.2d at 254, for the proposition that “[i]t is not the

duty of this Court to construct arguments for or find support
                                     -6-
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”).         Plaintiff’s    appeal     is,

therefore, dismissed.

    DISMISSED.

    Judges STROUD and HUNTER, JR. concur.

    Report per Rule 30(e).
