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Edwards v. Foley

Court of Appeals of North Carolina

May 16, 2017

BARRY D. EDWARDS, XMC FILMS, INCORPORATED, AEGIS FILMS, INC., and DAVID E. ANTHONY, Plaintiffs,
v.
CLYDE M. FOLEY, RONALD M. FOLEY, LAVONDA S. FOLEY, SAMUEL L. SCOTT, CRS TRADING CO. LLC., BROWN BURTON, RONALD JED MEADOWS, and AMERICAN SOLAR KONTROL, LLC, Defendants.

          Heard in the Court of Appeals 4 May 2017.

         Appeal by Defendants from order entered 28 June 2016 by Judge James G. Bell in Robeson County Superior Court Robeson County, No. 12 CVS 3117.

          Ward and Smith, P.A., by Alexander C. Dale, Edward J. Coyne, III, and Knight Johnson, LLC, by Bryan M. Knight, for the Plaintiffs-Appellees.

          Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Kimberly M. Marston and Walter L. Tippett, Jr., for the Defendants-Appellants.

          DILLON, Judge.

         Defendants appeal from an order granting Plaintiffs' motion for summary judgment. For the following reasons, we dismiss Defendants' appeal as interlocutory.

         I. Background

         Clyde Foley is a co-founder of XMC Films ("XMC"), a Virginia corporation that produces coated film products. This matter involves a dispute between Mr. Foley and other minority shareholders and XMC and its current management.

         Plaintiffs filed numerous claims against Defendants. In response, Defendants filed a motion to dismiss, answer, counterclaims, and a third-party complaint.[1]

         Plaintiffs and Defendants filed cross-motions for summary judgment. The trial court granted Plaintiffs' motion for summary judgment on Defendants' counterclaims but denied Defendants' motion for summary judgment on Plaintiffs' claims.

         Defendants appealed the trial court's order granting Plaintiff's summary judgment motion on Defendants' counterclaims and denying Defendants' motion for summary judgment; however, in their appellate brief, Defendants failed to articulate any substantial right affected by the trial court's interlocutory order. After Plaintiffs filed their appellee brief pointing out this deficiency, Defendants requested that this Court allow them to amend their brief. For the reasons below, we denied Defendants' motion to amend their principal brief and hereby dismiss their appeal from the trial court's interlocutory order.

         II. Analysis

         "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). As a general rule, there is no right of appeal from an interlocutory order. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994). However, a party is permitted to appeal an interlocutory order if "[1] . . . the trial court certifies in the judgment that there is no just reason to delay the appeal[, ]" or if "[2] the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." Id. at 379, 444 S.E.2d at 253 (internal marks and citations omitted). "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[.]" Id.

         In the present case, because the trial court declined to certify the matter for immediate appeal, it was Defendants' burden to establish on ...


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