An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA14-199

NORTH CAROLINA COURT OF APPEALS

Filed: 7 October 2014

SANDY GROVE BAPTIST CHURCH, LISA 

BARNES, JACKIE HAGWOOD (on behalf 

of the Family of Shelby Jean 

Mosley),

Plaintiffs

v. Nash County

No. 11 CVS 1177

BETTY JOYCE FINCH,

Defendant.

Appeal by plaintiffs from order entered 10 September 2013 

by Judge Marvin K. Blount, III in Nash County Superior Court. 

Heard in the Court of Appeals 13 August 2014.

Newton & Lee, PLLC, by E.S. “Buck” Newton, III, for 

plaintiffs-appellants. 

Etheridge, Hamlett & Murray, LLP, by Ernie K. Murray, for 

defendant-appellee. 

HUNTER, Robert C., Judge.

Sandy Grove Baptist Church (“Sandy Grove”), Lisa Barnes 

(“Ms. Barnes”), and Jackie Hagwood (“Ms. Hagwood”) (collectively 

“plaintiffs”) appeal from an interlocutory order denying their 

motion for partial summary judgment and granting partial summary 
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judgment in favor of Betty Joyce Finch (“defendant”). On 

appeal, plaintiffs argue that the trial court erred by denying 

their motion for partial summary judgment because there exist no 

genuine issues of material fact and plaintiffs are entitled to 

judgment as a matter of law on their claim for rescission of 

deed and quiet title; they further argue that summary judgment 

for defendant was improper on Ms. Hagwood’s claim of intentional 

infliction of emotional distress (“IIED”) because genuine issues 

of material fact exist as to whether Ms. Hagwood suffered severe 

emotional distress as a result of defendant’s conduct. 

After careful review, we dismiss plaintiffs’ appeal.

Background

This cause of action concerns a 2-acre tract of land in 

Nash County, North Carolina deeded on 2 June 1823 from Archibald 

Lemon to Osborn Strickland, in his capacity as representative of 

the members of the Baptist Church at Lemon’s Meeting House. 

This “indenture” was recorded at Book 11, page 101 of the Nash 

County Registry and reads as follows:

This indenture made this 2nd day of June of 

1823 between Arch Lamon of the County of 

Nash and State of North Carolina of the one 

part and Osbon Strickland of for and in 

behalf of the members of the Baptist Church 

at Lamon’s Meeting House of the other part 

Witnesseth that I the said Arch Lamon doth 

hereby freely give grant and confirm unto 
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the said Osbon Strickland in behalf of the 

members of the said Church at Lamon’s 

Meeting House two acres of land around the 

said Meeting House on the north side of the 

roads so as to contain an equal distance in 

front of the road from each end of the House 

for the sole purpose and accommodation of 

the church and for no other purpose whatever 

so long as the same shall be used as a place 

of Preaching or public worship by the Church 

thereof and no longer and I the said Arch 

Lamon doth for myself and my heirs hereby 

warrant and defend this said described land 

unto the said Osbon Strickland for the above 

named purpose and not otherwise against the 

claim of any person whatever . . . . 

Sometime after the filing of this indenture, the Baptist

Church at Lemon’s Meeting House changed its name to Sandy Grove 

Baptist Church. In 1914, A.T. Strickland, A.J. Chamblee, and 

Geo W. Morgan, as “members and deacons of Sandy Grove Baptist 

Church,” filed a petition in Nash County Superior Court to 

establish a dividing line between the tract owned by Sandy Grove 

and that belonging to the surrounding landowners, J.W. Finch and 

his wife, Alice Finch – defendant’s ancestors. The petitioners 

identified the tract that they claimed for the church as that 

“conveyed by Archbale Lemon” and “recorded in book 11, at page 

101, Nash Registry.” The Finches did not dispute that Sandy 

Grove owned an adjoining tract of land; they merely disputed the 

metes and bounds that it claimed. A surveyor was appointed by 

the trial court to determine the contested boundary, and after 
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the survey was completed, the parties agreed to a specified 

dividing line. The parties then entered into a settlement 

agreement and the trial court entered a judgment on 9 October 

1915 incorporating the surveyor’s plat and adopting the metes 

and bounds description of the property contained therein. 

According to Sandy Grove’s records, the church continued to 

operate from 1915 until around the 1980’s. The extent of the 

church’s religious services after the 1980’s is disputed. 

Around this time, an unidentified member of Sandy Grove entered 

into its records that its membership had dwindled to three 

members and that the last service occurred on 1 May 1985. The 

records also contain the following notation: “no longer able to 

hold services. May the Lord be with this old church house and 

the few sisters. Books closed.” 

Defendant is in her seventies; she is a member of the Finch 

family and testified in deposition that she lived across the 

Sandy Grove property within eyesight of the church her entire 

life. She testified that as of 2005, the building was 

dilapidated and in a state of severe disrepair. She claimed 

that the pews, pulpit, and furniture had been removed from the 

building, the chimney had fallen in, the roof and windows were 

broken, and there was an unmaintained open well on the property. 
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Ms. Barnes, one of the named plaintiffs, admitted that the 

building was in disrepair in 2005 but could neither confirm nor 

deny the extent of the damage. 

On 19 April 2005, the descendants of J.W. and Alice Finch 

filed a deed in Nash County purporting to convey the Sandy Grove 

tract to defendant and defendant’s sister (“the purported 

deed”). The instrument contained the following language:

WHEREAS, by instrument dated June 2, 1823, 

recorded in Book 11, page 101, Nash County 

Public Registry, Archibald Leamon, executed 

an Indenture to Osborne Strickland for and 

on behalf of the members of the Baptist 

Church at Leamon’s Meeting House, 2 acres of 

land providing in said instrument “for the 

sole purpose and accommodation of the church 

and for no other purpose whatsoever as [sic] 

long as the same shall be used as a place of 

preaching or public worship by the church 

whereas, and no longer”; and,

WHEREAS, through various ownership changes 

and transfers through the years of the 

parent tract of land from which the 2 acre 

tract was carved, the Grantors herein are 

the owners of that portion of the 1823 

parent tract from which the hereinafter 

described 2 acres was carved, and,

WHEREAS, the 2-acre tract of land has been 

abandoned, the structure thereon is in 

disrepair, no church service has been held 

or conducted in at least 40 years, that the 

last church to use the facility as a church 

and place of worship was the Sandy Grove 

Baptist Church, which ceased to exist more 

than 40 years ago and there are no known 

Trustees, Board of Deacons, Pastors, church 
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officials or any other officers of the 

church and none has been known to exist for 

more than 40 years; and,

WHEREAS, by the reverter (reversion) clause 

in said 1823 instrument hereinabove 

mentioned, title to the lands herein has 

reverted to the Grantors herein and the 

Grantors desire to convey their interest in 

the lands described herein to the 

Grantees[.] 

Defendant’s sister died in 2006, leaving defendant with the 

entire interest in the tract. After continued years of 

disrepair, defendant had the Sandy Grove building demolished in 

2011 and posted “No Trespassing” signs throughout the grounds. 

Ms. Hagwood testified in deposition that her aunt had 

indicated in writing a desire to be buried at Sandy Grove 

cemetery. She testified that after her aunt died in January 

2011, she tried to arrange a burial at Sandy Grove but was 

refused access to the cemetery by defendant. Ms. Hagwood 

further testified that as a result of being unable to fulfill 

her aunt’s wishes, she experienced bouts of anxiety, 

hopelessness, headaches, and lost sleep. 

On 11 July 2011, plaintiffs filed suit against defendant. 

In their amended complaint, plaintiffs listed six total claims: 

(1) declaratory judgment that Sandy Grove is the owner of the 

disputed property in fee simple; (2) rescission of the purported 
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deed to defendant and quiet title for Sandy Grove; (3) access to 

cemetery under N.C. Gen. Stat. § 65-102 (2013); (4) trespass and 

damage to property; (5) intentional infliction of emotional

distress on Ms. Hagwood; and (6) injunctive relief. On 30 

November 2012, plaintiffs filed a motion for summary judgment. 

Defendant filed a cross motion for summary judgment for all 

claims on 13 February 2012. According to plaintiffs’ Motion for 

Specific Findings entered 30 August 2013, a hearing was held on 

the parties’ motions for summary judgment on 24 June 2013. No 

transcript of this hearing has been filed with this Court. 

On 10 September 2013, the trial court entered an order 

denying plaintiffs’ motion for “partial summary judgment” and 

granting summary judgment for defendant on Ms. Hagwood’s IIED 

claim. The trial court ruled that there existed genuine issues 

of material fact precluding summary judgment for defendant on 

the remaining claims and precluding summary judgment for 

plaintiffs on the unspecified claims for which their purported 

motion for “partial” summary judgment applied. It is unclear 

from the order which of the six claims were the subject of 

plaintiffs’ motion for partial summary judgment. Plaintiffs 

filed timely notice of appeal from this order. 

Discussion
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I. Grounds for Appellate Review

Plaintiffs first argue that the trial court’s interlocutory 

order is immediately appealable because a substantial right 

would be deprived without immediate review. We disagree.

“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, 362, 57 S.E.2d 377, 381 (1950). Orders that 

either deny summary judgment or grant partial summary judgment 

are interlocutory. See North Carolina Dept. of Transp. v. Page, 

119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). “Generally, 

there is no right of immediate appeal from interlocutory orders 

and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 

725, 392 S.E.2d 735, 736 (1990). However, immediate appeal of 

an interlocutory order is available where: (1) the trial court 

certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A1, Rule 54(b) (2013); or (2) the order deprives the appellant of 

a substantial right under N.C. Gen. Stat. § 1-277(a) (2013) 

which would be lost without immediate review. Page, 119 N.C. 

App. at 734, 460 S.E.2d at 334. 
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Because the trial court here did not certify this case for 

immediate appeal under Rule 54(b), plaintiffs argue that 

immediate review is appropriate because the trial court’s order 

affects a substantial right. At the outset, we note that at no 

point in plaintiffs’ brief do they attempt to argue how a 

substantial right would be deprived without immediate review of 

the trial court’s order granting partial summary judgment for 

defendant on Ms. Hagwood’s IIED claim. “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 . . . .” 

Jefferys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 

444 S.E.2d 252, 254 (1994). Thus, we dismiss plaintiffs’ 

arguments pertaining to the trial court’s grant of summary 

judgment on the IIED claim. See id.; see also State ex rel. 

City of Charlotte v. Hidden Valley Kings, __ N.C. App. __, __, 

__ S.E.2d __, __ (2014) (dismissing appeal because the 

appellants failed to argue that a substantial right would be 

irrevocably lost absent immediate review of an interlocutory 

order). 
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Additionally, we dismiss the remaining portions of the 

appeal because plaintiffs have failed to demonstrate how the 

trial court’s denial of their motion for partial summary 

judgment affects a substantial right.

“The purpose of the doctrine of res judicata is to protect 

litigants from the burden of relitigating previously decided 

matters and to promote judicial economy by preventing 

unnecessary litigation.” Holly Farms Inc. v. Kuykendall, 114 

N.C. App. 412, 417, 442 S.E.2d 94, 97 (1994). “Under the 

companion doctrine of collateral estoppel, also known as 

‘estoppel by judgment’ or ‘issue preclusion,’ the determination 

of an issue in a prior judicial or administrative proceeding 

precludes the relitigation of that issue in a later action . . . 

.” Urquhart v. East Carolina Sch. Of Med., __ N.C. App. __, __, 

712 S.E.2d 200, 204 (2011).

“Ordinarily, the denial of a motion for summary judgment 

does not affect a substantial right so that an appeal may be 

taken.” Motyka v. Nappier, 9 N.C. App. 579, 582, 176 S.E.2d

858, 859 (1970). However, the denial of a motion for summary 

judgment based on the defenses of res judicata or collateral 

estoppel may affect a substantial right, making the order 

immediately appealable. See Bockweg v. Anderson, 333 N.C. 486, 
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491, 428 S.E.2d 157, 161 (1993); see also Country Club of 

Johnston Cnty., Inc. v. U.S. Fidelity and Guar. Co., 135 N.C. 

App. 159, 167, 519 S.E.2d 540, 546 (1999).

This Court has recently clarified that immediate appeal 

from such orders is not automatically allowed; the appellant 

still bears the burden of demonstrating how the order affects a 

substantial right:

We acknowledge the existence of an apparent 

conflict in this Court as to whether the 

denial of a motion for summary judgment 

based on res judicata affects a substantial 

right and is immediately appealable. 

However, our Supreme Court has addressed 

this issue in Bockweg, and, like the panel 

in Country Club, “we do not read Bockweg as 

mandating in every instance immediate appeal 

of the denial of a summary judgment motion 

based upon the defense of res judicata. The 

opinion pointedly states reliance upon res 

judicata ‘may affect a substantial right.’” 

Country Club, 135 N.C. App. at 166, 519 

S.E.2d at 545 (emphasis in original) 

(quoting Bockweg, 333 N.C. at 491, 428 

S.E.2d at 161).

Heritage Operating, L.P. v. N.C. Propane Exch., LLC, __ N.C. 

App. __, __ n.2, 727 S.E.2d 311, 314 n.2 (2012). Thus, a party

seeking immediate appellate review of an order denying a motion 

for summary judgment based on res judicata or collateral 

estoppel must show “not only that one claim has been finally 

determined and others remain which have not yet been determined, 
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but that (1) the same factual issues would be present in both 

trials and (2) the possibility of inconsistent verdicts on those 

issues exists[.]” Heritage Operating, L.P., __ N.C. App. at __, 

727 S.E.2d at 314-15 (quoting Country Club of Johnston Cnty., 

135 N.C. App. at 167, 519 S.E.2d at 546 (emphasis in original)). 

Here, plaintiffs contend that the doctrines of res judicata 

and collateral estoppel both work to prevent defendant from 

contesting plaintiffs’ claim of quiet title. Specifically, 

plaintiffs argue that ownership of the property in question was 

“previously resolved between the plaintiff Sandy Grove Baptist 

Church and J.W. Finch” in the 1915 judgment. Thus, plaintiffs 

argue because J.W. Finch is the grandfather of defendant and is 

defendant’s predecessor in title, defendant cannot now argue 

that she has title to the land upon which Sandy Grove rests. 

Plaintiffs further contend that if this matter is allowed to go 

to trial, there exists the risk of a verdict inconsistent with 

the 1915 judgment, which set the boundary between Sandy Grove’s 

land and J.W. Finch’s land. We do not find these arguments 

persuasive.

In 1915, members and deacons of Sandy Grove entered into a 

consent judgment with J.W. Finch to determine the boundary 

between their respective tracts of land. At no point was the 
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type of interest that Sandy Grove held in the land in question. 

In contrast, when defendant was purportedly deeded the land upon 

which Sandy Grove rests in 2005, the basis for that conveyance

was the contention that Sandy Grove had been deeded a fee simple 

determinable by Archibald Lemon in 1823, not a fee simple 

absolute. “A fee simple determinable estate terminates 

automatically upon the occurrence of [an] event, which gives 

rise to [a] reverter[.]” City of Charlotte v. Charlotte Park & 

Recreation Comm'n, 278 N.C. 26, 31, 178 S.E.2d 601, 605 (1971). 

“To create a fee simple determinable, the conveyance to the 

grantee, A, must contain a phrase such as ‘so long as,’ ‘as long 

as,’ ‘while,’ ‘during,’ or ‘until.’” 118 Am. Jur. Proof of 

Facts 3d. 125. Defendant contends that the language in the 1823 

deed, “so long as the same shall be used as a place of Preaching 

or public worship by the Church thereof and no longer,” created 

a fee simple determinable that would revert title in the land to 

the grantor should the property no longer be used as a place of 

worship by Sandy Grove. Thus, because Sandy Grove’s books were 

closed in the mid-1980’s and the building itself fell into 

severe disrepair, defendant contends that Sandy Grove lost title 

in the land because it no longer used the tract as a place of 

preaching or public worship. 
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Regardless of the merits of these contentions, we conclude 

that there is no risk of a verdict inconsistent with the 1915 

judgment that would be sufficient to allow immediate appeal from 

the trial court’s order. Even if this matter were to go to a 

jury and Sandy Grove were to lose title in the land as a result 

of its failure to use the tract as a place for preaching or 

public worship, such a result would not conflict with the 1915 

judgment setting a boundary between Sandy Grove’s and J.W. 

Finch’s respective tracts. At no point in the 1915 proceeding 

was the type of interest in Sandy Grove’s tract addressed, 

presumably because at the time it was a functioning church with 

multiple members and deacons. Thus, the facts and arguments in 

the 1915 dispute are distinct and separate from those raised 

here, removing the risk that an inconsistent verdict will be 

entered should this matter proceed to trial. 

Accordingly, because plaintiffs, as the appellants, have 

failed to carry their burden of demonstrating “the possibility 

of inconsistent verdicts,” Heritage Operating, L.P., __ N.C. 

App. at __, 727 S.E.2d at 314-15, they have also failed to show 

how the trial court’s order affects a substantial right. Thus, 

dismissal of this appeal is proper. See Country Club of Johnston 

Cnty., 135 N.C. App. at 167, 519 S.E.2d at 546 (dismissing 
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appeal taken from the denial of a motion for summary judgment 

because the plaintiff could not demonstrate a possibility of 

inconsistent verdicts if the case were to proceed to trial, and 

thus failed to show how the order affected a substantial right 

warranted immediate appeal).

Conclusion

For the foregoing reasons, we dismiss plaintiffs’ appeal 

from the trial court’s interlocutory order. 

DISMISSED.

Judges DILLON and DAVIS concur.

Report per Rule 30(e).