{ "id": 9381647, "name": "ROBERT COLEMAN PRATT, JR., and wife, JUDITH ELLIS PRATT, Plaintiffs v. JACK S. STATON, Defendant", "name_abbreviation": "Pratt v. Staton", "decision_date": "2001-12-18", "docket_number": "No. COA00-1415; No. COA01-128", "first_page": "771", "last_page": "775", "citations": [ { "type": "official", "cite": "147 N.C. App. 771" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "436 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "150-51", "parenthetical": "holding that a Rule 60 motion was appropriately denied where it sought relief from an order dismissing less than all of the claims in an action" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521766 ], "year": 1993, "pin_cites": [ { "page": "408", "parenthetical": "holding that a Rule 60 motion was appropriately denied where it sought relief from an order dismissing less than all of the claims in an action" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0400-01" ] }, { "cite": "252 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549543 ], "year": 1979, "pin_cites": [ { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0227-01" ] }, { "cite": "217 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "540" } ], "opinion_index": 0 }, { "cite": "288 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565242 ], "year": 1975, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0183-01" ] }, { "cite": "433 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 822", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524228 ], "year": 1993, "pin_cites": [ { "page": "825" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0822-01" ] }, { "cite": "431 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "879" }, { "page": "879" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 257", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521578 ], "year": 1993, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0257-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "year": 1994, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "511 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "311" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237793 ], "year": 1999, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0341-01" ] }, { "cite": "328 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525686 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0597-01" ] }, { "cite": "516 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "881" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11143188 ], "year": 1999, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0116-01" ] }, { "cite": "270 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "301 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564716 ], "year": 1980, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-539.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 514, "char_count": 10697, "ocr_confidence": 0.763, "pagerank": { "raw": 1.992196299688486e-07, "percentile": 0.7419291626654682 }, "sha256": "f7725b85e23c80a320c03c7615d2509ed05a893082c0ac4f5057f1b5c712b1c9", "simhash": "1:87aad43cd4bfbdf4", "word_count": 1742 }, "last_updated": "2023-07-14T20:07:10.251034+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge HUDSON concur." ], "parties": [ "ROBERT COLEMAN PRATT, JR., and wife, JUDITH ELLIS PRATT, Plaintiffs v. JACK S. STATON, Defendant" ], "opinions": [ { "text": "CAMPBELL, Judge.\nPlaintiffs filed two interrelated appeals from orders granting defendant\u2019s motion to dismiss plaintiffs\u2019 claims for violation of restrictive covenants and unfair and deceptive trade practices. Upon plaintiffs\u2019 motion, the appeals were consolidated for argument pursuant to N.C. R. App. P. 40. The appeals remain consolidated for decision in this opinion. For'the reasons stated herein, we dismiss both of plaintiffs\u2019 appeals.\nOn 3 March 2000, plaintiffs filed the instant action alleging defendant had cut and removed trees from plaintiffs\u2019 property in order to create a scenic view from defendant\u2019s adjacent tract of property over plaintiffs\u2019 property, thereby enhancing the market value of defendant\u2019s property and causing substantial damage to plaintiffs\u2019 property. Based on defendant\u2019s alleged misconduct, plaintiffs asserted claims against defendant for trespass to real property, violation of N.C. Gen. Stat. \u00a7 1-539.1, conversion, trespass to chattels, negligence and unfair and deceptive trade practices. Plaintiffs further alleged that defendant had cut down and removed several trees from his own property in violation of the restrictive covenants governing the parties\u2019 subdivision.\nOn 7 July 2000, defendant filed a motion to dismiss plaintiffs\u2019 claims for violation of restrictive covenants and unfair and deceptive trade practices. Defendant\u2019s motion was granted and the respective claims were dismissed by order filed 11 August 2000. Plaintiffs filed timely notice of appeal from the trial court\u2019s order of dismissal. On 22 September 2000, subsequent to filing notice of appeal in COAOO-1415, plaintiffs filed a \u201cMotion To Correct Order Dismissing Claims For Relief.\u201d Specifically, plaintiffs moved the trial court to amend its 11 August 2000 order by certifying it for immediate appellate review pursuant to N.C. R. Civ. P. 54(b) (Rule 54(b)). On 10 October 2000, the trial court entered an amended order of dismissal which contained the trial court\u2019s Rule 54(b) certification. Plaintiffs subsequently filed timely notice of appeal from the trial court\u2019s amended order (COAOl-128).\nThe dispositive issue on appeal is whether the respective orders are properly before this Court for review. Although neither party has raised and addressed the interlocutory nature of plaintiffs\u2019 appeals, we raise the issue of appealability on our own motion. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). \u201cWhere atrial court\u2019s order . . . fails to resolve all issues between all parties in an action, the order is not a final judgment, but rather is interlocutory.\u201d Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 118, 516 S.E.2d 879, 881 (1999). An order, such as the orders sub judice, granting a motion to dismiss certain claims in an action, while leaving other claims in the action to go forward, is plainly an interlocutory order. See Thompson v. Newman, 74 N.C. App. 597, 328 S.E.2d 597 (1985).\nAs a general rule, an interlocutory order is not immediately appealable. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999). However, an interlocutory order may be immediately appealed where it is certified for appellate review pursuant to Rule 54(b), or \u201cwhere delaying the appeal will irreparably impair a substantial right of the party.\u201d Id. Here, the trial court\u2019s 11 August 2000 order granting defendant\u2019s motion to dismiss was not certified by the trial court pursuant to Rule 54(b). Thus, it is immediately appealable only if delay would irreparably impair a substantial right of plaintiffs.\nHowever, plaintiffs failed to present argument in their brief to this Court to support our acceptance of this interlocutory appeal.\nIt is not the duty of this Court to construct arguments for or find support for appellants\u2019] right to appeal from an interlocutory order; instead, the appellants have] the burden of showing this Court that the order deprives the appellants] of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.\nJeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Since plaintiffs have failed to argue how delaying appeal of the trial court\u2019s 11 August 2000 order would deprive them of a substantial right, we dismiss plaintiffs\u2019 appeal of the 11 August 2000 order as interlocutory.\nApparently realizing that the trial court\u2019s 11 August 2000 order was interlocutory, and hoping to secure its immediate appellate review, plaintiffs filed a motion to correct the order pursuant to N.C. R. Civ. R 60 (Rule 60), seeking amendment of the order to reflect the trial court\u2019s Rule 54(b) certification. Plaintiffs relied on both Rule 60(a) and Rule 60(b)(6) as grounds for their motion to correct the order. However, for the following reasons, we hold that neither Rule 60(a) nor Rule 60(b)(6) is the appropriate tool for seeking to amend an order to add the trial court\u2019s Rule 54(b) certification. Therefore, the trial court\u2019s 10 October 2000 amended order is vacated and plaintiffs\u2019 appeal in COAOl-128 is likewise dismissed.\nRule 60(a) provides a limited mechanism for trial courts to amend erroneous judgments. Specifically, Rule 60(a) provides, in pertinent part:\n(a) Clerical mistakes. \u2014 Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the judge at any time on his own initiative or on the motion of any party and after such notice, if any, as the judge orders. . . .\nN.C. R. Civ. P. 60(a) (1999).\n\u201cWhile Rule 60[a] allows the trial court to correct clerical mistakes in its order, it does not grant the trial court the authority to make substantive modifications to an entered judgment.\u201d Food Service Specialists v. Atlas Restaurant Management, 111 N.C. App. 257, 259, 431 S.E.2d 878, 879 (1993). \u201cA change in an order is considered substantive and outside the boundaries of Rule 60(a) when it alters the effect of the original order.\u201d Buncombe County ex rel. Andres v. Newbum, 111 N.C. App. 822, 825, 433 S.E.2d 782, 784 (1993). We conclude that the 10 October 2000 amended order imper-missibly altered the effect of the 11 August 2000 order.\nWe find this Court\u2019s prior decision in Food Service to be closely analogous to the present situation. In that case, the trial court, on its own initiative and purportedly pursuant to Rule 60(a), amended a previous order by changing the date of entry of judgment from 2 October 1991 to 21 January 1992. However, the actual date judgment was entered was 13 December 1991. In holding that this was an improper exercise of Rule 60(a), we stated, \u201c[b]y changing the incorrect date of entry of judgment (2 October 1991) to a date other than 13 December 1991, the actual date judgment was entered, the trial court improperly altered the substantive rights of the parties by extending the period in which the parties could file a timely notice of appeal.\u201d Food Service, 111 N.C. App. at 259-60, 431 S.E.2d at 879.\nWe conclude that by adding the trial court\u2019s Rule 54(b) certification and establishing grounds for immediate appellate review of an otherwise interlocutory order, the trial court\u2019s 10 October 2000 amended order likewise \u201caltered the substantive rights of the parties.\u201d Id. As in Food Service, the amended order in the instant case allowed plaintiffs to circumvent the established procedural rules governing the bringing of an appeal and secure appellate review of an otherwise unappealable order. Accordingly, we hold that Rule 60(a) is not an appropriate means for seeking an amendment to an order or judgment to add the trial court\u2019s Rule 54(b) certification.\nPlaintiffs also cited Rule 60(b)(6) as grounds for their motion to correct the 11 August 2000 order. Rule 60(b) reads, in pertinent part:\n(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. \u2014 On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:\nN.C. R. Civ. P. 60(b) (emphasis added). By its express terms, Rule 60(b) only applies to final judgments, orders, or proceedings; it has no application to interlocutory orders. Sink v. Easter, 288 N.C. 183, 193, 217 S.E.2d 532, 540 (1975); O\u2019Neill v. Bank, 40 N.C. App. 227, 230, 252 S.E.2d 231, 234 (1979). Since the trial court\u2019s 11 August 2000 order only granted defendant\u2019s motion to dismiss two, but not all, of plaintiffs\u2019 claims, it is not a final judgment or order. Thus, plaintiffs\u2019 motion to correct the order could not, as a matter of law, have been proper under Rule 60(b), and the trial court should not have considered the motion. See Hooper v. Pizzagalli Construction Co., 112 N.C. App. 400, 408, 436 S.E.2d 145, 150-51 (1993) (holding that a Rule 60 motion was appropriately denied where it sought relief from an order dismissing less than all of the claims in an action). Therefore, we vacate the trial court\u2019s 10 October 2000 amended order and dismiss plaintiffs\u2019 appeal in COAOl-128.\nIn summary, we dismiss plaintiffs\u2019 appeal in COAOO-1415, and we vacate the trial court\u2019s 10 October 2000 amended order and dismiss plaintiffs\u2019 appeal from said vacated order in COAOl-128.\nAppeals dismissed and order vacated.\nChief Judge EAGLES and Judge HUDSON concur.", "type": "majority", "author": "CAMPBELL, Judge." } ], "attorneys": [ "McGuire, Wood & Bissette, P.A., by Grant B. Osborne, for plaintiff-appellants.", "Coward, Hicks & Siler, P.A., by William H. Coward, for defendant-appellee." ], "corrections": "", "head_matter": "ROBERT COLEMAN PRATT, JR., and wife, JUDITH ELLIS PRATT, Plaintiffs v. JACK S. STATON, Defendant\nNo. COA00-1415\nNo. COA01-128\n(Filed 18 December 2001)\nAppeal and Error\u2014 preservation of issues \u2014 interlocutory appeal \u2014 Rule 60 motion to add certification\nAn appeal was dismissed as interlocutory where the trial court\u2019s original order was not certified for appellate review pursuant to N.C.G.S. \u00a7 1A-1, Rule 54(b) and plaintiffs failed to argue in their brief that delay would deprive them of a substantial right. Although plaintiffs subsequently filed a motion to amend the order pursuant to N.C.G.S. \u00a7 1A-1, Rule 60 to add the certification, Rule 60(a) provides a limited mechanism to amend erroneous judgments and is not an appropriate means for seeking an amendment to add a Rule 54(b) certification, and Rule 60(b)(6) applies only to final judgments, orders, or proceedings and has no application to interlocutory orders.\nAppeal by plaintiffs from order entered 11 August 2000 (COAOO-1415) and appeal by plaintiffs from amended order entered 10 October 2000 (COAOl-128) by Judge Loto G. Caviness in Jackson County Superior Court. Heard in the Court of Appeals 8 October 2001.\nMcGuire, Wood & Bissette, P.A., by Grant B. Osborne, for plaintiff-appellants.\nCoward, Hicks & Siler, P.A., by William H. Coward, for defendant-appellee." }, "file_name": "0771-01", "first_page_order": 801, "last_page_order": 805 }