Cebula v. The Givens Estates, Inc

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-242 NORTH CAROLINA COURT OF APPEALS Filed: 1 October 2013 ALICE JOPPA CEBULA, Plaintiff Buncombe County No. 12 CVS 373 v. THE GIVENS ESTATES, INC., Defendant Appeal by plaintiff from order entered 12 September 2012 by Judge Marvin P. Pope, Jr. in Buncombe County Superior Court. Heard in the Court of Appeals 23 September 2013. Donald H. Barton, P.C., by Donald H. Barton, for plaintiffappellant. McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for defendant-appellee. ERVIN, Judge. Plaintiff Alice Joppa Cebula appeals from an order awarding attorney fees to Defendant Givens Estate. On appeal, Plaintiff argues that the trial court erroneously awarded attorney s fees in favor of Defendant on the grounds that the evidence was insufficient to support the trial court s attorney s fees order, that the trial court s order did not contain findings of fact -2addressing all of the issues which had to be resolved in order to adequately support an attorney s fees award, and that the trial court lacked the authority to award attorney s fees unless Plaintiff had discovery requests. trial court provision in In discovery had consideration orders refused entered despite already of of the respond Plaintiff an the been Plaintiff s light to addition, erroneously of discovery completely to argues order fact record and that compelling that provided. challenges Defendant s the the the the requested After to the careful trial applicable court s law, we conclude that Plaintiff failed to note an appeal from the order compelling discovery and that Plaintiff s appeal from the trial court s attorney s fees award should be dismissed as having been taken from an unappealable interlocutory order. I. Factual Background On 25 January 2012, Plaintiff filed a complaint in which she attempted relating to to assert several claims against a residence and services agreement Defendant that she had entered into with Defendant on 12 September 2007. On 28 June 2012, Defendant filed a motion seeking the entry of an order compelling Plaintiff Defendant s motion September 2012. to to provide compel certain was heard items on 12 of discovery. July and 4 On 4 September 2012, the trial court entered an -3order granting Defendant s motion to compel and requiring Plaintiff to respond to certain specific discovery requests. On 12 September 2012, the trial court entered an order concluding that Plaintiff s opposition to Defendant s motion to compel was not substantially justified and awarding Defendant $2,210.00 in attorney s fees pursuant to N.C. Gen. Stat. § 1A-1, Rule 37(a)(4). Defendant noted an appeal to this Court from the trial court s attorney s fees order. II. Legal Analysis A. Order Compelling Discovery As an initial matter, we note that Plaintiff has advanced two arguments challenging the propriety of the trial court s order granting Defendant s motion to compel discovery. Plaintiff did not, however, note an appeal from this order. a result, this Court lacks arguments on the merits. the authority to consider As these Finley Forest Condo. Ass n v. Perry, 163 N.C. App. 735, 741, 594 S.E.2d 227, 231 (2004). Thus, wholly aside from the deficiency in Plaintiff s appeal addressed in the next section of this opinion, we have no ability to address the arguments that Plaintiff has raised in opposition to the order compelling discovery given our lack of jurisdiction over Plaintiff s challenges to that order. B. Attorney s Fees Order -4In addition, Plaintiff argues that the trial court erred by requiring her to pay attorney s fees to Defendant. The trial court s attorney s fees order is an interlocutory order because it does not determine the entire controversy between all of the parties. Abe v. Westview Capital L.C., 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). [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 omitted). 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 which would be jeopardized absent a review prior to a final determination on the merits. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994); see also N.C.R. App. P. 28(b)(4) (stating that, [w]hen an appeal is interlocutory, the statement [of the grounds for appellate review] must contain sufficient facts and argument to support appellate review on the ground -5that the challenged order affects a substantial right. ). Where the appellant fails to carry the burden of making such a showing to the [C]ourt, the appeal will be dismissed. Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338, affirmed, 360 N.C. 53, 619 S.E.2d 502 (2005). In this case, the trial court did not enter final judgment as to one or more claims or parties after certifying that there was no just reason for delay as authorized by N.C. Gen. Stat. § 1A-1, Rule 54(b). For that reason, Plaintiff s appeal is not properly before this Court unless Plaintiff has established that the trial court s attorney s fees order affected a substantial right. Aside from the fact that she did not include a statement of the grounds for appellate review as required by N.C. Gen. Stat. § 1A-1, Rule argument in her 28(b)(4), Plaintiff has brief to the effect that not advanced any the trial attorney s fees order affected a substantial right. court s Moreover, as a general proposition, an order to pay attorney s fees as a sanction does not affect a substantial right. Long v. Joyner, 155 N.C. App. 129, 134, 574 S.E.2d 171, 175 (2002), disc. review denied, 356 N.C. 673, 577 S.E.2d 624 (2003). Thus, for all of these appeal reasons, we conclude that Plaintiff s has been taken from an unappealable interlocutory order and should be, and hereby is, dismissed. -6APPEAL DISMISSED. Judges GEER and DILLON concur. Report per Rule 30(e).

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