Florek v. Borror Realty Co.

SMITH, Judge. The threshold issue before us is whether plaintiffs’ appeal is interlocutory and thus not properly before this Court. “It is well established that the entry of summary judgment for fewer than all defendants is not a final judgment and is not immediately appealable unless it affects a substantial right or is certified pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b) (1990).” Long v. Giles, 123 N.C. App. 150, 152, 472 S.E.2d 374, 375 (1996). Our Supreme Court has held that a grant of summary judgment as to fewer than all of the defendants affects a substantial right when there is the possibility of inconsistent verdicts, stating that it is “the plaintiff’s right to have one jury decide whether the conduct of one, some, all or none of the defendants caused his injuries. . . .” Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 409 (1982). Upon careful consideration of the issue of derivative liability, however, this Court recently held there is no possibility of inconsistent verdicts, when a principal whose liability is [835] derivative is determined to be not liable by the trial court and the claims against the alleged agent remain. Long, 123 N.C. App. at 152-53, 472 S.E.2d at 375. Examination of plaintiffs’ claims summarily establishes the lack of any possibility of inconsistent verdicts on the claims leveled solely at defendant Borror or defendant Hundleys. We are unpersuaded by appellants’ substantial right argument that the negligent construction and breach of implied warranties claims, which are only against Borror, present the possibility of an inconsistent verdict. Thus, the only remaining claims which could potentially affect appellants’ substantial rights are those alleging fraud, negligent misrepresentation, and unfair and deceptive trade practices against Borror and defendant Hundleys. These claims, however, are based upon a principal and agent relationship. Thus, there is no possibility of inconsistent verdicts as any liability on the part of Borror hinges upon a finding of liability on the part of defendant Hundleys. See Long, 123 N.C. App. at 153, 472 S.E.2d at 374 (finding no possibility of inconsistent verdicts when the liability of a defendant found not liable by the trial court is derivative of a finding of liability against a defendant who remains a party to the pending lawsuit). Although appellants attempt to establish Borror’s liability as a principal on the common claims alleged against both Borror and the Hundleys, the undisputed facts before us establish that Mr. Hundley was not an employee or agent of Borror at the time defendant Hundleys sold the house to plaintiff Floreks. Appellants are correct in their recognition that their negligent construction and breach of implied warranties are alleged solely against Borror. Therefore, there is no possibility of an inconsistent verdict on these claims, or any other, and the appeal should be dismissed. This Court has held that “it is the appellant’s burden to present appropriate grounds for this Court’s acceptance of an interlocutory appeal,” and appellants in the instant case fail to establish that a substantial right will be lost absent immediate appellate review. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Appellants’ argument fails to establish any possibility of an inconsistent verdict. A well-established principle to which this Court adheres is: 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 [836] 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. Id. at 380, 444 S.E.2d at 254. In view of the foregoing, we dismiss this action in accordance with the procedural rules which are designed to “promotef] judicial economy by avoiding fragmentary, premature and unnecessary appeals and permit[] the trial court to fully and finally adjudicate all the claims among the parties before the case is presented to the appellate court.” Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 201, 464 S.E.2d 720, 722-23 (1995). Appeal dismissed. Judges Martin, Mark D., and McGee concur.