{
  "id": 9083043,
  "name": "STEPHEN HUDSON, SR., Plaintiff v. WILLIAM R. McKENZIE, JR., SALLY McKENZIE, and, WILLIAM R. McKENZIE, III, Defendants",
  "name_abbreviation": "Hudson v. McKenzie",
  "decision_date": "2002-06-18",
  "docket_number": "No. COA01-1052",
  "first_page": "708",
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  "last_updated": "2023-07-14T19:52:10.836930+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges HUDSON and BIGGS concur."
    ],
    "parties": [
      "STEPHEN HUDSON, SR., Plaintiff v. WILLIAM R. McKENZIE, JR., SALLY McKENZIE, and, WILLIAM R. McKENZIE, III, Defendants"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nStephen Hudson, Sr. (Plaintiff) appeals from an order filed 30 May 2001 granting summary judgment in favor of: William R. McKenzie, Jr. (McKenzie), Sally McKenzie, and William R. McKenzie, III on Plaintiffs first claim for abuse of process; and McKenzie on Plaintiffs claim for libel per se and second claim for abuse of process. After granting partial summary judgment, the trial court dismissed Sally McKenzie and William R. McKenzie, III from the action but retained jurisdiction over the action pending final resolution of Plaintiff\u2019s claim for malicious prosecution against McKenzie.\nThe dispositive issue is whether Plaintiffs appeal must be dismissed as interlocutory.\nAlthough the parties have not raised the interlocutory nature of the appeal, \u201cit is appropriately raised by this Court sua sponte.\u201d Abe v. Westview Capital, L.C., 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). An interlocutory order is one that \u201cdoes not determine the entire controversy between all the parties.\u201d Id. Generally, a party may not immediately appeal an interlocutory order. Id. A party, however, may immediately appeal an interlocutory order if: (1) the trial court has entered a final order as to one or more but fewer than all of the claims or parties and has certified in the order, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b), that there is no just reason to delay an appeal, id.-, N.C.G.S. \u00a7 1A-1, Rule 54(b) (2001); or (2) the denial of an immediate appeal would affect a substantial right, Abe, 130 N.C. App. at 334, 502 S.E.2d at 881. In either situation, \u201cit is the appellant\u2019s burden to present argument in his brief to this Court to support acceptance of the appeal, as it \u2018is not the duty of this Court to construct arguments for or find support for appellant\u2019s right to appeal from an interlocutory order.\u2019 \u201d Id. (quoting Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994)). Thus, if the appeal is based on a Rule 54(b) certification, the appellant must include a statement in his brief to this Court indicating \u201cthere has been a final judgment as to one or more but fewer than all of the claims or parties and that there has been a certification by the trial court that there is no just reason for delay.\u201d N.C.R. App. P. 28(b)(4). Likewise, if the appeal is based on a substantial right, the appellant must include a statement in his brief to this Court \u201ccontain[ing] sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\u201d Id.\nIn this case, the appeal is interlocutory as there has been no final judgment as to all the parties or as to all of Plaintiff\u2019s claims. While the trial court\u2019s order does constitute a final adjudication of the claims against Sally McKenzie and William R. McKenzie, III and of some of the claims against McKenzie, the trial court did not certify the order pursuant to Rule 54(b). Plaintiff presents no argument in his brief to this Court to support acceptance of this appeal. Accordingly, Plaintiff\u2019s appeal must be dismissed.\nDismissed.\nJudges HUDSON and BIGGS concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Cunningham Crump & Cunningham, PLLC, by R. Flint Crump, for plaintiff-appellant.",
      "Barron & Berry, L.L.P., by Vance Barron, Jr., for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "STEPHEN HUDSON, SR., Plaintiff v. WILLIAM R. McKENZIE, JR., SALLY McKENZIE, and, WILLIAM R. McKENZIE, III, Defendants\nNo. COA01-1052\n(Filed 18 June 2002)\nAppeal and Error\u2014 appealability \u2014 partial summary judgment\nA plaintiff\u2019s appeal from an order granting summary judgment in favor of all defendants on plaintiff\u2019s first claim for abus\u00e9 of process, granting summary judgment in favor of one defendant on plaintiff\u2019s claim for libel per se and second claim for abuse of process, and dismissing two defendants from the action but retaining jurisdiction over the action pending final resolution of plaintiff\u2019s claim for malicious prosecution against the remaining defendant, is dismissed as an appeal from an interlocutory order, because: (1) there has been no final judgment as to all the parties or as to all of plaintiff\u2019s claims; (2) the trial court did not certify the order under N.C.G.S. \u00a7 1A-1, Rule 54(b); and (3) plaintiff presents no argument in his brief to the Court of Appeals to support acceptance of this appeal.\nAppeal by plaintiff from order filed 30 May 2001 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 4 June 2002.\nCunningham Crump & Cunningham, PLLC, by R. Flint Crump, for plaintiff-appellant.\nBarron & Berry, L.L.P., by Vance Barron, Jr., for defendant-appellees."
  },
  "file_name": "0708-01",
  "first_page_order": 738,
  "last_page_order": 740
}