VC3, Inc. v. Vanguard Wireless Technologies, LLC

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-441 NORTH CAROLINA COURT OF APPEALS Filed: 16 October 2012 VC3, INC., Plaintiff v. Mecklenburg County No. 11 CVS 1495 VANGUARD WIRELESS TECHNOLOGIES, LLC and MATTHEW RYAN KLANN, Defendants Appeal by defendants from order entered 12 December 2011 by Judge Hugh B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 September 2012. Ferguson, Scarbrough, Hayes, Hawkins & James R. DeMay, for plaintiff-appellee. DeMay, P.A., by Tuggle Duggins & Meschan, P.A., by Martha R. Sacrinty and J. Nathan Duggins III, for defendant-appellants. CALABRIA, Judge. Vanguard Wireless Technologies, LLC ( Vanguard ) and Matthew Ryan Klann ( Klann ) (collectively defendants ) appeal from an order sanctions. granting VC3, Inc. s ( plaintiff ) We dismiss the appeal as interlocutory. motion for -2On 27 January 2011, plaintiff filed a complaint in Mecklenburg County Superior Court against Vanguard and Klann, Vanguard s sole member and manager, seeking damages for, inter alia, breach of contract against Vanguard, piercing the corporate veil against Klann, fraud against Klann, and unfair and deceptive trade practices. counterclaims, interference alleging with three Defendants filed an answer and breach contract of claim, contract claims, an per se, defamation interference with a prospective economic advantage, and unfair and deceptive acts and practices. Defendants also filed a motion to dismiss all of plaintiff s claims except the claims for breach granted of contract. defendants On motion 1 to November dismiss1 2011 the all of trial court plaintiff s remaining claims with the exception of the claim for piercing the corporate veil. During discovery, plaintiff requested bank statements and copies of checks. When defendants failed to produce the requested items, plaintiff filed a motion to compel production of 1 documents. After a hearing, the trial court ordered Plaintiff did not file a motion to dismiss any of defendants counterclaims. According to defendants brief, with the exception of the defamation claim, all of defendants counterclaims remain. -3defendants to produce the documents. Defendants objected to the order and ultimately only produced the bank statements. Since defendants refused to produce copies of the checks, plaintiff filed a motion for sanctions and requested, inter alia, striking Vanguard s pleadings or dismissing some or all of Vanguard s defenses and counterclaims. plaintiff s request court s order piercing the offering evidence for sanctions. judicially corporate The trial court granted In established veil and in opposition contend that addition, plaintiff s prohibited of the claim defendants this claim. trial court trial for from Defendants appeal. Defendants the abused its discretion by imposing Rule 37 sanctions for their failure to comply with the order compelling production of the check copies. However, defendants appeal from an interlocutory order, and have not included a trial court s certification pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) or an explanation regarding how the trial court s order deprives them of a substantial right. Parties have an appeal of right to this Court [f]rom any final judgment of a superior court[.] N.C. Gen. Stat. § 7A- 27(b) (2011). A final judgment is one which disposes of the cause as to all the parties, leaving -4nothing to be judicially determined between them in the trial court. 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, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted). [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. . . . 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) (quotation marks and citations omitted). Absent a trial court s Rule 54(b) certification, the appellant is required to include a statement of the grounds for appellate review in its brief to this Court that contains sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right. N.C.R. App. P. 28(b)(4) (2012); Johnson v. Lucas, 168 N.C. App. 515, 519, 608 S.E.2d 336, 338, aff d per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005) (appeal dismissed for appellant s failure to comply with Rule 28(b)(4)). -5In the instant case, the trial court s order granting plaintiff s motion for sanctions is interlocutory as it does not dispose of the entire case. v. Lingerfelt, (2003). the 158 N.C. App. Currin & Currin Constr., Inc. 711, 713, 582 S.E.2d 321, 323 Plaintiff s claims for breach of contract and piercing corporate veil as well as counterclaims remain unresolved. several of defendants Therefore, we must determine if the interlocutory order is immediately appealable. An interlocutory order is immediately appealable when the trial court certifies that there was no just reason for delay according to Rule 54(b). When there is no certification by the trial court, defendants must prove that the challenged order affects a substantial right. N.C.R. App. P. 28(b)(4) (2012). Although defendants brief includes a statement of the grounds for appellate review, the brief simply recites that the Order of the Superior Court affects a substantial right and cites N.C. Gen. Stat. § 7A-27(d). However, merely claiming that the trial court s order affects a substantial right is insufficient to meet the burden of showing a substantial right. See Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) ( The appellants must present more than a -6bare assertion that the order affects a substantial right; they must demonstrate why the order affects a substantial right. ). Since defendants have failed to demonstrate how the trial court s order deprives them of a substantial right, we dismiss the appeal as interlocutory. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (It is not this Court s duty to construct arguments for or find support for appellant s right to appeal from an interlocutory order rather, 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. ). Dismissed. Judges ELMORE and STEPHENS concur. Report per Rule 30(e).

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