An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA13-802

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

MDT PERSONNEL, LLC,

Plaintiff,

v. Guilford County

No. 12 CVS 3555

APH CONTRACTORS, INC. d/b/a APH, 

INC., WILD BUILDING CONTRACTORS, 

INC., and CINCINNATI INSURANCE 

COMPANY,

 Defendants.

WILD BUILDING CONTRACTORS, INC.,

 Cross-Claim Plaintiff,

 v.

APH CONTRACTORS, INC. d/b/a APH, 

INC.,

 Cross-Claim Defendant.

APH CONTRACTORS, INC. d/b/a APH, 

INC.,

 Cross-Claim Plaintiff,

 v.

WILD BUILDING CONTRACTORS, INC., 

and CINCINNATI INSURANCE COMPANY,

 Cross-Claim Defendants. 

Appeal by defendant/cross-claim defendant/cross-claim 

plaintiff from judgment entered 31 December 2012 and order 
-2-

entered 6 March 2013 by Judge Patrice A. Hinnant in Guilford

County Superior Court. Heard in the Court of Appeals 21 

November 2013.

No brief filed on behalf of plaintiff-appellee.

Robinson, Bradshaw & Hinson, P.A., by R. Steve DeGeorge and

Kate E. Payerle, for defendant, cross-claim defendant, 

cross-claim plaintiff-appellant APH Contractors, Inc. d/b/a 

APH, Inc.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Kevin S. 

Joyner, for defendant, cross-claim plaintiff, cross-claim 

defendant-appellee Wild Building Contractors, Inc. and 

defendant, cross-claim defendant-appellee Cincinnati 

Insurance Company.

GEER, Judge.

Defendants APH Contractors, Inc. doing business as APH, 

Inc. and Wild Building Contractors, Inc. asserted cross-claims 

against each other. APH appeals from the trial court's judgment 

awarding Wild Building damages on its breach of contract crossclaim against APH and ordering that APH recover nothing on its 

cross-claims against Wild Building and defendant/cross-claim 

defendant Cincinnati Insurance Company. APH also appeals the 

trial court's order denying APH's motion for a new trial. 

Based on the record on appeal submitted to this Court, we 

are unable to determine if the judgment and order appealed by 

APH constitute an immediately appealable final judgment and 
-3-

order rather than an interlocutory judgment and order. Since 

APH has failed to demonstrate that this appeal involves a final 

judgment and has further failed to argue that any interlocutory 

appeal affects a substantial right that would be jeopardized 

absent review prior to a final determination as to all claims,

we dismiss the appeal.

Facts

On 7 February 2012, plaintiff MDT Personnel, LLC, filed a 

complaint against APH, Wild Building, and Cincinnati, alleging 

the following facts. Laurinburg Housing Authority entered into 

a contract with Wild Building, hiring Wild Building to serve as 

the general contractor for a construction project. Cincinnati 

was Wild Building's surety on the contract. Wild Building

entered into a subcontract with APH to furnish certain labor and 

materials for the project, and APH, in turn, entered into a 

subcontract with MDT to furnish labor. Ultimately, APH owed MDT 

an outstanding balance of $198,587.05 for labor supplied 

pursuant to the subcontract.

MDT brought suit against APH for breach of contract. MDT 

further alleged that Wild Building and Cincinnati were jointly 

and severally liable for the balance due to MDT on its contract 

with APH. MDT also asserted claims against APH and Wild 

Building for unjust enrichment. 
-4-

Wild Building and Cincinnati jointly filed an answer to 

MDT's complaint and asserted cross-claims against APH for 

contractual indemnity, equitable indemnity, breach of contract, 

breach of warranty, and fraud. After filing an answer and 

amended answer to MDT's complaint and to the cross-claims, APH 

also asserted cross-claims against Wild Building and Cincinnati 

for breach of contract, joint and several liability, unjust 

enrichment, and attorney's fees. 

It appears from the record that MDT and Wild Building

reached an agreement pursuant to which Wild Building agreed to 

pay MDT the principal balance owed for MDT's labor on the 

project in the amount of $184,327.24. After that agreement was 

in place, the trial court entered an order granting summary 

judgment in favor of MDT against APH, Wild Building, and 

Cincinnati for interest owed on the principal balance, but 

denying MDT's motion for summary judgment with respect to its 

request for attorney's fees. On 7 December 2012, MDT took a 

voluntary dismissal without prejudice, pursuant to Rule 41(a)(1) 

of the Rules of Civil Procedure, of its claims for "breach of 

contract only as to the recovery of principal balance," 

attorney's fees, and unjust enrichment.

The case proceeded to trial on the cross-claims of APH,

Wild Building, and Cincinnati. Following a jury verdict, the 
-5-

trial court entered a judgment awarding Wild Building

$133,856.34 plus post-judgment interest on Wild Building's 

cross-claim against APH for breach of contract. The trial court 

further ordered that APH "shall have and take nothing" from any 

of its cross-claims against Wild Building and Cincinnati. 

APH filed a motion for a new trial pursuant to Rule 59 of 

the Rules of Civil Procedure, alleging that the jury foreperson 

had revealed to the trial court, parties, and counsel after the 

verdict that he had a "severe hearing impairment" and was, 

consequently, "incapable of performing his duties." Following a 

hearing, the trial court denied the motion for a new trial in an 

order entered 6 March 2013. APH appealed to this Court from the 

judgment and the order denying its motion for a new trial. 

Discussion

We must first address this Court's jurisdiction to hear 

this appeal. "A final judgment is one which disposes of the 

cause as to all the parties, leaving nothing to be judicially 

determined between them in the trial court. 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, 361-62, 

57 S.E.2d 377, 381 (1950) (internal citations omitted).
-6-

"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 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 [under Rule 54(b) of the Rules 

of Civil Procedure]. . . . 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) (internal quotation marks omitted).

Here, all of MDT's claims were resolved prior to trial 

through the voluntary dismissal, and all of APH's cross-claims 

against Wild Building and Cincinnati were resolved by the trial 

court's judgment. The judgment also resolved Wild Building's 

cross-claim against APH for breach of contract. The judgment 

did not, however, address Wild Building's and Cincinnati's 

cross-claims against APH for contractual indemnity, equitable 

indemnity, breach of warranty, and fraud. 

While it is possible that Wild Building's and Cincinnati's 

cross-claims for contractual indemnity, equitable indemnity, 

breach of warranty, and fraud were resolved or otherwise
-7-

disposed of prior to, or during, the trial, the record does not 

contain any mention of any resolution of those claims. The 

parties submitted to this Court a truncated trial transcript 

that includes only the final day of trial. The oral rendering 

of the verdict provided in that truncated transcript does not 

clearly indicate what claims were decided by the jury. There is 

also no verdict sheet included in the record on appeal. 

On this record, we cannot determine that the appealed 

judgment and order "dispose[d] of the cause as to all the 

parties, leaving nothing to be judicially determined between 

them in the trial court." Veazey, 231 N.C. at 361-62, 57 S.E.2d 

at 381. "It is well established that the appellant bears the 

burden of showing to this Court that the appeal is proper." 

Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338, 

aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005). 

Similarly, "'it is the appellant's responsibility to make sure 

that the record on appeal is complete and in proper form.'" 

Smith v. Heath, 208 N.C. App. 467, 470, 703 S.E.2d 194, 196 

(2010) (quoting Miller v. Miller, 92 N.C. App. 351, 353, 374 

S.E.2d 467, 468 (1988)). 

Moreover, Rule 28(b)(4) of the Rules of Appellate Procedure 

requires that the appellant's brief include a statement of 

grounds for appellate review that "shall include citation of the 
-8-

statute or statutes permitting appellate review." Further, 

"when an appeal is interlocutory, the appellant must include in 

its statement of grounds for appellate review 'sufficient facts 

and argument to support appellate review on the ground that the 

challenged order affects a substantial right.'" Johnson, 168 

N.C. App. at 518, 608 S.E.2d at 338 (quoting N.C.R. App. P. 

28(b)(4)).

In this case, APH's statement of grounds for appellate 

review does not indicate that the appeal has been taken from a 

final judgment and order, does not cite any statute permitting 

appellate review, and does not otherwise address whether this 

appeal has been taken from a final judgment or whether it is 

interlocutory. Rather, APH's statement of grounds for appellate 

review simply summarizes APH's argument on the merits. Further, 

nothing else in APH's brief or reply brief explains what 

happened to the other cross-claims.1 

APH has also failed to demonstrate that an interlocutory 

appeal would be appropriate. The trial court did not include a 

Rule 54(b) certification in its judgment or its order denying 

APH's motion for new trial. Consequently, APH's appeal is 

properly before this Court only if APH has met its burden of 

 

1We note also that nothing in Wild Building's and 

Cincinnati's brief suggests any resolution of the apparently 

outstanding cross-claims.
-9-

showing this Court that the judgment and order deprive it 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). APH has not, however, made any argument 

regarding a substantial right. 

We cannot simply assume that we have jurisdiction. Nor is 

it 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." Id. See also Viar v. N.C. 

Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) 

(holding that "[i]t is not the role of the appellate courts . . 

. to create an appeal for an appellant"). 

Since APH has failed to show that this Court has 

jurisdiction over this appeal, we must dismiss the appeal. See 

Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254 (dismissing 

interlocutory appeal because appellant "presented neither 

argument nor citation to show this Court that [appellant] had 

the right to appeal the order dismissing its counterclaims").

Dismissed.
-10-

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).