NO. COA13-951

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

MARGARITA BELILA HOLBERT,

Plaintiff

v.

Henderson County

No. 09 CVD 2008

LARRY R. HOLBERT,

Defendant

Appeal by defendant from orders entered 18 March 2013 and 4 

June 2013 by Judge Peter Knight in Henderson County District

Court. Heard in the Court of Appeals 6 January 2014.

Prince, Youngblood & Massagee, PLLC, by Boyd B. Massagee, 

Jr., for Plaintiff-Appellee.

F.B. Jackson & Associates Law Firm, PLLC, by Frank B. 

Jackson and Angela S. Beeker, for Defendant-Appellant.

ERVIN, Judge.

Defendant Larry R. Holbert appeals from orders denying his

motion for summary judgment directed to Plaintiff’s equitable 

distribution claim and granting Plaintiff’s motion for summary 

judgment with respect to one of the grounds upon which Defendant 

sought to challenge the validity of her equitable distribution 

claim, with the relevant issue being the validity of Defendant’s 

contention that his marriage to Plaintiff Margarita Belila 

Holbert had been performed by an individual who was not 
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authorized to perform marriage ceremonies and the extent to 

which the trial court was precluded from considering that 

contention on the merits in light of an earlier consent 

judgment, and denying Defendant’s motion for relief from that

earlier consent judgment predicated on the theory that the

consent judgment failed to accurately reflect the agreement 

between the parties that it was supposed to memorialize. After 

careful consideration of Defendant’s challenges to the trial 

court’s orders in light of the record and the applicable law, we 

conclude that Defendant’s appeal should be dismissed as having 

been taken from unappealable interlocutory orders.

I. Factual Background

A. Substantive Facts

Plaintiff came to the United States from the Philippines on 

or about 10 December 2000 as Defendant’s fiancée. The parties

were married on 9 February 2001 by an individual named Earl R. 

Jones, who was selected to perform that role by Defendant. 

Although he was “licensed in the Gospel Ministry” at the time 

that he conducted the parties’ marriage ceremony, Mr. Jones had 

not been “ordained” by the church with which he was affiliated

at that time. Mr. Jones was, however, “ordained” on 30 March 

2008.
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After the performance of the marriage ceremony, Plaintiff 

and Defendant held themselves out to be husband and wife. The

parties’ relationship began to deteriorate when Defendant began 

to curse Plaintiff, state that it would have been cheaper to 

have her killed, and offer to pay others to marry her. At 

approximately the time that the parties separated on 16 

September 2009, Defendant locked Plaintiff out of the marital

residence and changed all of the locks.

B. Procedural Facts

On 6 October 2009, Plaintiff filed a complaint in which she 

claimed that she had been abandoned by Defendant and sought a 

divorce from bed and board, post-separation support, alimony,

equitable distribution, and an award of attorney’s fees. On 20 

October 2009, Defendant filed a motion seeking to have 

Plaintiff’s complaint dismissed in reliance upon the parties’ 

premarital agreements and to enforce the provisions of their 

premarital agreements. On 6 April 2010, the parties filed a 

memorandum of decision in which Defendant “waive[d] any defense 

to any cause of action set out in the complaint on the basis of 

any premarital agreement” and “any defense by virtue of any 

other premarital agreement not identified in his answer.” In 

return for this commitment and the payment of $50,000, Plaintiff 

waived all of the claims that she had asserted against Defendant 
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except for the right to have marital and divisible property 

equitably distributed. As part of this process, the parties 

agreed that it would be unnecessary for their signatures to 

appear on the formal consent judgment. On 6 May 2010, Judge 

Athena Fox Brooks entered a consent judgment that provided, in 

pertinent part, that “[b]oth parties agree that [Plaintiff] is 

entitled to proceed with her claim of equitable distribution 

against [Defendant] without any defense thereto”; that 

Defendant’s dismissal motion should be denied; and that the only 

issue remaining between the parties involved the equitable

distribution of their marital and divisible property.

1

On 6 October 2010, Defendant filed a complaint in a 

separate action seeking an absolute divorce. On 23 November 

2010, the court granted Defendant an absolute divorce.

On 4 February 2011, Defendant filed a motion seeking to 

have the 6 April 2010 memorandum of decision and the 6 May 2010 

consent judgment set aside pursuant to N.C. Gen. Stat. § 1A-1, 

Rule 60(b)(1), (4) and (6). In support of this request, 

Defendant contended that he had entered into the agreement 

memorialized in these documents at a time when his cognition was 

impaired and that he had been unable to understand the contents

 

1The 6 May 2010 consent judgment also memorialized an 

agreement between the parties under which Plaintiff agreed to 

dismiss a domestic violence proceeding that she had initiated 

against Defendant.
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of the 6 April 2010 memorandum of decision when he signed it. 

On 11 May 2011 and 8 June 2011, respectively, the trial court 

entered an order and an amended order denying Defendant’s motion 

on the grounds that he was presumed to be competent when he 

consented to the agreement memorialized in the 6 April 2010 

memorandum of decision and the 6 May 2010 consent judgment and

that he had failed to present substantial evidence tending to 

show that he was incompetent at the time that he entered into 

this agreement.

On 11 October 2012, Defendant, who was now represented by

new legal counsel, filed an answer and counterclaim in which he 

asserted, among other things, that he was entitled to rely on 

the provisions of the parties’ premarital agreement as a defense 

to Plaintiff’s equitable distribution claim, with this assertion 

resting upon his recent discovery that Mr. Jones was not

authorized to conduct marriage ceremonies under North Carolina 

law, and that he was entitled to have his marriage to Plaintiff 

annulled, with this assertion resting on a contention that Mr. 

Jones had not been legally authorized to perform their marriage 

ceremony and that the parties had never consummated their 

marriage. In addition, Defendant filed a motion for relief from 

judgment pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b) in the 

action in which he had been divorced from Plaintiff on 16 
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October 2012 in which he alleged that he had recently learned 

that Mr. Jones had not been authorized to conduct the parties’ 

marriage ceremony. On 8 November 2012, Plaintiff filed a 

response to Defendant’s filings in the equitable distribution 

and divorce proceedings in which she asserted a number of 

affirmative defenses to Defendant’s contentions, including, but 

not limited to, ratification, collateral estoppel, judicial 

estoppel, waiver, fraud, and statute of limitations.

On 3 December 2012, Defendant filed a motion seeking the 

entry of summary judgment in his favor with respect to 

Plaintiff’s equitable distribution claim on the grounds that 

there “was no valid marriage between the parties” given the fact 

that Mr. Jones had not been “ordained” at the time of the 

parties’ marriage ceremony. On 6 February 2013, Plaintiff moved 

for partial summary judgment with respect to the issue of 

whether (1) the parties’ premarital agreements barred her

equitable distribution claim; (2) Plaintiff had waived her right 

to assert an equitable distribution claim by executing the 

parties’ premarital agreements, (3) Plaintiff was estopped by 

the parties’ premarital agreements from asserting an equitable 

distribution claim, (4) the fact that Plaintiff took a salary 

from Defendant barred her from asserting an equitable 

distribution claim, and (5) Plaintiff had misappropriated money 
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from Defendant. After a hearing held on 18 February 2013, the

trial court entered an order on 18 March 2013 granting

Plaintiff’s partial summary judgment motion and specifically 

determining, among other things, that Defendant was barred from 

asserting the parties’ premarital agreement as a defense to 

Plaintiff’s equitable distribution claim by the 6 April 2010 

memorandum of decision and 6 May 2010 consent judgment. In 

addition, the trial court entered another order on the same date

denying Defendant’s request for an annulment of his marriage to 

Plaintiff given that he had elected the remedy of absolute 

divorce rather than annulment with full knowledge of the facts 

underlying his contention that the parties’ marriage had never 

been consummated; denying Defendant’s request for the entry of 

summary judgment in his favor with respect to Plaintiff’s 

equitable distribution claim on the grounds that the record 

reflected the existence of genuine issues of material facts 

concerning the extent to which Mr. Jones had the authority to 

conduct the parties’ wedding ceremony; and granting summary 

judgment in favor of Plaintiff with respect to the issue of 

whether Defendant was entitled to assert any defense, including 

the invalidity of the parties’ marriage, in opposition to 

Plaintiff’s equitable distribution claim given the provisions of 

the 6 April 2010 memorandum of decision and the 6 May 2010 
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consent judgment. Defendant noted an appeal to this Court from 

the second 18 March 2013 order on 17 April 2013.

On 16 April 2013, Defendant filed a motion for relief from 

the 6 May 2010 consent judgment and the second 18 March 2013 

order pursuant to N.C. Gen. Stat. § 1A-1, Rule 60(b)(3) and (4), 

or, in the alternative, for a new trial pursuant to N.C. Gen. 

Stat. § 1A-1, Rule 59, with both requests for relief predicated 

on the theory that the language concerning Defendant’s waiver of 

the right to assert any defenses to Plaintiff’s equitable 

distribution claim contained in the 6 May 2010 order was

inconsistent with the equivalent provision of the 6 April 2010 

memorandum of decision and that this inconsistency between the 

relevant provisions of the two documents indicated that Judge 

Brooks lacked jurisdiction to enter the 6 May 2013 order to the

extent that it precluded him from asserting any defense to 

Plaintiff’s equitable distribution claim. On 4 June 2013, the 

trial court entered an order denying Defendant’s motion, finding 

that Defendant’s motions were “closely related to the Motions 

previously heard by the undersigned and certified for immediate 

review by the Court of Appeals,” that there was a “need for a 

determination of these issues prior to an Equitable Distribution 

Trial,” and that “the undersigned respectfully certifies to the 

Court of Appeals that there are no just reasons for delay in 
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reviewing these orders.” On 5 June 2013, the trial court 

entered a certification stating that it deemed “it appropriate 

that the orders entered by him” on 18 March 2013 “be reviewed by 

the North Carolina Court of Appeals, and further respectfully 

certifies to the North Carolina Court of Appeals that there is 

no just reason for delay in so reviewing these orders.”2 On 5 

June 2013, Defendant noted an appeal to this Court from the 4 

June 2013 order.

II. Substantive Legal Analysis

A. General Principles of Appellate Jurisdiction

As an initial matter, we must address the extent to which 

this Court has jurisdiction over Defendant’s challenges to the 

 

2We note, in passing, that Defendant never noted an appeal 

from the first 18 March 2013 order, that the trial court

certified the 18 March 2013 orders almost two months after 

Defendant noted an appeal to this Court from the second 18 March 

2013 order, and that the trial court’s signature on the 

attempted certification of the 18 March 2013 orders antedates

the date upon which the certification was file-stamped by three 

days. However, given that Defendant has not advanced any 

substantive challenge to the validity of the first 18 March 2013 

order, that Defendant’s failure to advance any arguments in his 

brief challenging the validity of a particular order precludes 

us from assessing its validity on appeal, State v. Garcell, 363 

N.C. 10, 70, 678 S.E.2d 618, 655 (citing N.C. R. App. P. 

28(b)(6) and State v. Raines, 362 N.C. 1, 26, 653 S.E.2d 126, 

142 (2007), cert. denied, 557 U.S. 934, 129 S. Ct. 2857, 174 L. 

Ed. 2d 601 (2009)), cert. denied, 558 U.S. 999, 130 S. Ct. 510, 

175 L. Ed. 2d 362 (2009), and that the trial court’s attempt to 

certify the second 18 March 2013 order for immediate review is 

ineffective for other reasons, we need not comment on the 

validity of the trial court’s attempt to certify the first 18 

March 2013 order for immediate review.
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second 18 March 2013 and the 4 June 2013 orders. Although 

Defendant acknowledges that both of the orders that he wishes to 

challenge on appeal are interlocutory, he contends that both 

orders are covered by exceptions to the general rule precluding 

appellate review of interlocutory orders. We are not persuaded 

by Defendant’s arguments.

“An order is either ‘interlocutory or the final 

determination of the rights of the parties.’ ‘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.’” Harbour Point Homeowners’ Ass’n v. DJF Enters., 

Inc., 206 N.C. App. 152, 156, 697 S.E.2d 439, 443 (2010)

(internal quotation marks and citations omitted) (quoting N.C. 

Gen. Stat. § 1A-1, Rule 54(a), and Veazey v. City of Durham, 231 

N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). “Ordinarily, an 

appeal will lie only from a final judgment.” Steele v. MooreFlesher Hauling Co., 260 N.C. 486, 491, 133 S.E.2d 197, 201 

(1963). However, interlocutory orders are appealable under 

certain circumstances. For example, a party is allowed to take 

an appeal from an interlocutory order that “affects a 

substantial right claimed in any action or proceeding,” N.C. 

Gen. Stat. § 1-277(a); see also N.C. Gen. Stat. § 7A-
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27(b)(3)(a), with the extent to which an interlocutory order 

affects a substantial right requiring “consideration of ‘the 

particular facts of that case and the procedural context in 

which the order from which appeal is sought was entered.’” 

Dep’t of Transp. v. Rowe, 351 N.C. 172, 175, 521 S.E.2d 707, 709 

(1999) (quoting Waters v. Qualified Personnel, Inc., 294 N.C. 

200, 208, 240 S.E.2d 338, 343 (1978)). In addition, N.C. Gen. 

Stat. § 1A-1, Rule 54(b) provides that a “court may enter a 

final judgment as to one or more but fewer than all of the 

claims or parties only if there is no just reason for delay and 

it is so determined in the judgment,” which “shall then be 

subject to review by appeal or as otherwise provided by these 

rules or other statutes.” However, the fact “[t]hat the trial 

court declared [an order] to be a final [order for purposes of 

N.C. Gen. Stat. § 1A-1, Rule 54(b)] does not make it so,” Tridyn 

Indus. V. Am. Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443, 

447 (1979), with any certification of an order that is not a 

final judgment as to a claim or party being ineffective. 

Anderson v. Atl. Cas. Ins. Co., 134 N.C. App. 724, 726, 518 

S.E.2d 786, 788 (1999). “Under either of these two 

circumstances, it is the appellant’s burden to present 

appropriate grounds for this Court’s acceptance of an 

interlocutory appeal and our Court’s responsibility to review 
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those grounds.” Bullard v. Tall House Bldg. Co., 196 N.C. App. 

627, 637, 676 S.E.2d 96, 103 (2009) (quoting Jeffreys v. Raleigh 

Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 

(1994)). As a result, given Defendant’s concession that the 

orders that he seeks to challenge on appeal are interlocutory in 

nature, we must now consider the extent to which either of these 

orders are properly before us for review at this time.3

B. Analysis of Appealability of Specific Orders

1. Second 18 March 2013 Order

Although the trial court addressed a number of issues in 

the second 18 March 2013 order, the only portion of that order 

that Defendant seeks to challenge on appeal at this time is the 

trial court’s decision to grant summary judgment in Plaintiff’s 

favor on the grounds that Defendant waived the right to assert 

any defenses to Plaintiff’s equitable distribution claim in the 

6 April 2010 memorandum of decision and the 6 May 2010 consent 

order. According to Defendant, the trial court’s decision to 

preclude him from asserting any defenses to Plaintiff’s 

equitable distribution claim affects a substantial right.

 

3As a result of the fact that Defendant noted his appeals 

from the second 18 March 2013 and 4 June 2013 orders prior to 23 

August 2013 and the fact that neither of the orders that 

Defendant wishes to challenge on appeal represent a final 

adjudication of Plaintiff’s equitable distribution claim, the 

provisions of N.C. Gen. Stat. § 50-19.1 do not apply in this 

instance.
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As an initial matter, Defendant argues, in reliance upon 

the Supreme Court’s decision in Mercer v. Hilliard, 249 N.C. 

725, 107 S.E.2d 554 (1959), that an order overruling a plea in 

bar is immediately appealable on substantial right grounds. In 

Mercer, the defendants asserted res judicata as a bar to the 

plaintiff’s personal injury claim. Id. at 726-27, 107 S.E.2d at 

555. However, the trial judge allowed the plaintiff’s demurrer

to the defendants’ res judicata defense. Id. at 727, 107 S.E.2d 

at 555. After stating that “‘[a] plea in bar is one that denies 

the plaintiff’s right to maintain the action, and which, if 

established, will destroy the action,’” id. at 728, 107 S.E.2d 

at 556 (quoting McIntosh, N.C. Practice & Procedure, § 523

(1929)) (citing Brown v. E.H. Clement Co., 217 N.C. 47, 51, 6 

S.E.2d 842, 845 (1940), and Solon Lodge Knights of Pythias Co.

v. Ionic Lodge Free Ancient & Accepted Masons, 245 N.C. 281, 

287, 95 S.E.2d 921, 925 (1957)), the Supreme Court stated that 

“[a]n order or judgment which sustains a demurrer to a plea in 

bar affects a substantial right and a defendant may appeal 

therefrom.” Id. (citing N.C. Gen. Stat. § 1-277 and Shelby v. 

Charlotte Elec. Rwy., Light, and Power Co., 147 N.C. 537, 538, 

61 S.E. 377, 378 (1908)). In other words, Defendant contends 

that any decision to reject a defense that would defeat a claim 

constitutes a plea in bar and that any order embodying such a 
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decision is immediately appealable on substantial right grounds. 

We do not find Defendant’s argument persuasive given the facts 

before us in this case.

The concept of a plea in bar arose under and existed in 

civil procedure systems that antedated the current North 

Carolina Rules of Civil Procedure.

What then is a plea in bar? The word “bar” 

has a peculiar and appropriate meaning in 

law. In a legal sense it is a plea or 

peremptory exception of a defendant, 

sufficient to destroy the plaintiff’s 

action, a special plea constituting a 

sufficient answer to an action at law, and 

so called because it barred–i.e., prevented–

the plaintiff from further prosecuting it 

with effect, and, if established by proof, 

defeated and destroyed the action 

altogether.

Murchison Nat’l Bank v. Evans, 191 N.C. 535, 538, 132 S.E. 563,

564 (1926). According to the Supreme Court:

the following pleas have been held to be 

pleas in bar: (1) Statute of Limitations. 

Oldham v. Rieger, 145 N.C. 254, [58 S.E. 

1091 [1907]. (2) Account stated. Kerr v. 

Hicks, 129 N.C. 141[, 39 S.E. 197 (1901)];

[Kerr v. Hicks,] 131 N.C. 90[, 42 S.E. 532

(1902)]; Jones v. Wooten, 137 N.C. [421, 49 

S.E. 915 (1905)]. (3) Failure to comply 

with the provisions of a contract which are 

conditions precedent to liability. Bank [of 

Tarboro] v. Fidelity [& Deposit] Co., 126 

N.C. [320, 35 S.E. 588 (1900)]. (4) Plea of 

sole seizin by reason of adverse possession 

of twenty years against a tenant in common. 

But [a] plea of sole seizin which by its 

very terms involves an accounting, is not a 

good plea. Duckworth v. Duckworth, 144 N.C. 
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620[, 57 S.E. 396 (1907)]. (5) Release. 

McAuley v. Sloan, 173 N.C. [80, 91 S.E. 701

(1917)]. (6) Accord and satisfaction. 

McAuley v. Sloan, 173 N.C. [80, 91 S.E. 701

(1917)]. (7) Estoppel by judgment. Jones v. 

Beaman, 117 N.C. [259, 23 S.E. 248 (1895)].

Id.; see also in Mercer, 249 N.C. at 727-28, 107 S.E.2d at 555-

56 (describing the assertion of a res judicata defense as a plea 

in bar). In view of the fact that a successful plea in bar 

barred an action from moving forward, Scott Poultry Co. v. 

Bryan, 272 N.C. 16, 19, 157 S.E.2d 693, 696 (1967) (stating that 

“[t]he effect of a plea in bar is to destroy plaintiff’s 

action”), such pleas played a role in earlier systems of civil 

procedure similar to that currently filled by affirmative 

defenses as that term is used in the North Carolina Rules of 

Civil Procedure.4 In apparent recognition of that fact, certain

decisions of this Court handed down within the first decade

after the enactment of the North Carolina Rules of Civil 

Procedure continued to make references to “pleas in bar” even 

 

4However, as should be obvious from an examination of the 

list of pleas in bar set out in Murchison National Bank and the 

non-exclusive list of affirmative defenses set out in N.C. Gen. 

Stat. § 1A-1, Rule 8(c) (listing “accord and satisfaction, 

arbitration and award, assumption of risk, contributory 

negligence, discharge in bankruptcy, duress, estoppel, failure 

of consideration, fraud, illegality, injury by fellow servant, 

laches, license, payment, release, res judicata, statute of 

frauds, statute of limitations, truth in actions for defamation, 

usury, waiver, and any other matter constituting an avoidance or 

affirmative defense” as affirmative defenses), pleas in bar are 

a subset of, rather than completely equivalent to, modern

affirmative defenses.
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though that expression does not appear in N.C. Gen. Stat. § 1A1, Rule 8. Taylor v. Bailey, 49 N.C. App. 216, 217, 271 S.E.2d 

296, 297 (1980) (treating the affirmative defense of election of 

remedies as a plea in bar), appeal dismissed, 301 N.C. 726, 274 

S.E.2d 235 (1981); T. A. Loving Co. v. Latham, 20 N.C. App. 318, 

319, 201 S.E.2d 516, 517 (1974) (stating that the “[d]efendants 

filed answer which contained a number of affirmative defenses 

constituting pleas in bar”); McKinney v. Morrow, 18 N.C. App. 

282, 283, 196 S.E.2d 585, 586 (noting that the defendant was 

allowed to “amend his answer to plead that release as an 

affirmative defense in bar”), cert. denied, 283 N.C. 655, 197 

S.E.2d 874 (1973). As a result, a plea in bar, like an 

affirmative defense, represented something that the defendant in 

a civil action was required to plead and prove. Lyon v. Shelter 

Resources Corp., 40 N.C. App. 557, 560, 253 S.E.2d 277, 279 

(1979) (citing N.C. Gen. Stat. § 1A-1, Rule 8(c); Price v. 

Conley, 21 N.C. App. 326, 328, 204 S.E.2d 178, 180 (1974))

(stating that “[a] defense based on waiver or release is an 

affirmative defense and, therefore, the defendant bears the 

burden of proof”).

Assuming, without in any way deciding, that the legal 

principle affording any party asserting a plea in bar against 

which a demurrer has been sustained the right to seek immediate 
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appellate relief has survived the enactment of the North 

Carolina Rules of Appellate Procedure,5 we do not believe that 

the principle upon which Defendant relies has any application in 

this case. As a general proposition, “‘a defense which contests 

one of the material allegations of the complaint is not an 

affirmative defense since it involves an element of the 

plaintiff’s prima facie case.’” Wallace v. Haserick, 105 N.C. 

App. 315, 319, 412 S.E.2d 694, 695, disc. review denied, 331 

N.C. 291, 417 S.E.2d 71 (1992) (quoting Shuford, North Carolina 

Civil Practice and Procedure, § 8-7 (1988)). The argument that 

Defendant was precluded from asserting by virtue of the trial 

court’s decision to grant summary judgment in Plaintiff’s favor 

in the second 18 March 2013 order involves, in essence, a denial 

that the parties were ever legally married. As a general 

proposition, a party to a void marriage does not have the rights 

available to a person who has entered into a valid marriage. 

Taylor v. Taylor, 321 N.C. 244, 249, 362 S.E.2d 542, 545-46 

(1987) (holding that a “bigamous marriage is a nullity, with no 

 

5As we read the applicable decisional law, there is 

substantial basis for questioning whether the principle upon 

which Defendant relies remains universally valid with respect to 

all defenses that were formerly treated as pleas in bar. E.g., 

Thompson v. Norfolk & S. Ry. Co., 140 N.C. App. 115, 121, 535 

S.E.2d 397, 401, (2000) (holding that “an order denying a 

party’s motion to dismiss based on a statute of limitation does 

not effect a substantial right and is therefore not 

appealable”).
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legal rights flowing from it”). For that reason, the statutory 

provisions governing equitable distribution actions assume that 

the only persons entitled to obtain an equitable distribution of 

marital and divisible property are the parties to a valid 

marriage. Thus, rather than constituting a plea in bar or even 

an affirmative defense, the contention that the trial court 

precluded Defendant from asserting in the second 18 March 2013 

order amounted to the denial that an element of Plaintiff’s 

equitable distribution claim ever existed. As a result, since 

the argument that Defendant has been precluded from making does 

not constitute an affirmative defense, much less a plea in bar,

Defendant is not entitled to an immediate appeal from the second 

18 March 2013 order based on the principle set out in Mercer.

Secondly, Defendant argues that the second 18 March 2013

order affects a substantial right by creating a risk that 

inconsistent judgments would be reached in the trial court. 

According to Defendant, Plaintiff’s equitable distribution claim

and his counterclaim for an annulment based on Mr. Jones’ lack 

of authority to perform the parties’ marriage ceremony are “so 

intertwined that an adjudication of [his] counterclaim could 

determine the outcome of [her] claim[].”6 In support of this 

 

6Defendant has not asserted in his brief any other basis for 

challenging the validity of his marriage, such as his contention 

that the parties never consummated their marriage, aside from 
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assertion, Defendant relies on our decision in Bartlett v. 

Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695-96 (1996), 

disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997), in 

which we allowed an interlocutory appeal from an order granting 

summary judgment in favor of the defendant with respect to the 

plaintiff’s negligence claim even though the defendant’s claim 

for unpaid fees resulting from the provision of his services 

remained undecided “[b]ecause the possibility of inconsistent 

verdicts from two trials on the same issues exist[ed]” in cases 

in which “‘there are overlapping factual issues between the 

claim determined and any claims which have not yet been 

determined because such overlap creates the potential for 

inconsistent verdicts resulting from two trials on the same 

factual issues.’” (internal quotation marks omitted) (quoting 

Liggett Group v. Sunas, 113 N.C. App. 19, 24, 437 S.E.2d 674, 

677 (1993)).

Although the legal principle upon which Defendant relies in 

support of the second of his “substantial right” contentions 

relating to the second 18 March 2013 order is certainly a valid 

one, it has no application in this instance. In essence, 

Defendant’s argument rests on the assumption that his 

 

his contention that Mr. Jones lacked the authority to perform 

their marriage ceremony, so we limit the discussion in the text 

of this opinion to the contention that Defendant has actually 

made.
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counterclaim for annulment was fully resolved in the second 18 

March 2013 order. However, the second 18 March 2013 order did 

not in any way determine that Defendant’s annulment claim lacked 

validity. In fact, the trial court determined that there were 

genuine issues of material fact concerning the extent to which 

Mr. Jones was authorized to conduct the parties’ marriage 

ceremony. Instead, the relevant provision of the second 18 

March 2013 order simply precludes Defendant from asserting the 

same facts upon which his annulment claim rests in response to 

Plaintiff’s equitable distribution claim. As a result, since 

the ruling with respect to Defendant’s contention that his 

marriage to Plaintiff was not valid embodied in the second 18 

March 2013 order is not inconsistent with Defendant’s assertion 

that he has the right to have his marriage annulled based on Mr. 

Jones’ lack of authority to conduct their marriage ceremony, 

Defendant is not entitled to immediate appellate review of the 

second 18 March 2013 order on substantial right grounds.

Finally, Defendant contends that, even if the second 18 

March 2103 order did not affect a substantial right, that order

was appealable pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b). 

However, Defendant has failed to identify any claim with respect 

to which the trial court made a final decision in the second 18 

March 2013 order. For example, the record clearly establishes 
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that the trial court has not finally decided the merits of 

Plaintiff’s equitable distribution claim. Although Defendant

contends that the second 18 March 2013 order “represent[s] a 

final order on Defendant’s counterclaim for annulment,” that 

contention is clearly without merit given that the trial court 

has never made a determination concerning the merits of 

Defendant’s annulment claim and, in fact, held that the record 

disclosed the existence of genuine issues of material fact 

concerning the extent to which Mr. Jones had the authority to 

marry Plaintiff and Defendant. As we have already noted, the 

trial court simply held that Defendant had waived the right to 

assert those facts in opposition to Plaintiff’s equitable 

distribution claim in light of the 6 April 2010 memorandum of 

decision and the 6 May 2010 consent judgment. Thus, the trial 

court lacked the authority to certify the second 18 March 2013 

order for immediate review pursuant to N.C. Gen. Stat. § 1A-1, 

Rule 54(b). As a result, since Defendant has not established 

that he is entitled to immediate appellate review of the second 

18 March 2013 order on any basis, we have no authority to reach 

the merits of Defendant’s challenge to the trial court decisions 

embodied in that order and must, instead, dismiss Defendant’s 

attempted appeal from that order.

2. 4 June 2013 Order
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According to Defendant, the 4 June 2013 order is subject to 

immediate appeal despite its interlocutory status on a number of 

grounds. More specifically, Defendant contends that he is 

entitled to an immediate appeal from the 4 June 2013 order on 

the grounds that the order in question rejects a plea in bar, 

creates a risk of inconsistent judgments, and has been certified 

for immediate review pursuant to N.C. Gen. Stat. § 1A-1, Rule 

54(b). Once again, we conclude that Defendant’s arguments lack 

merit.

7

As was the case with respect to his challenge to the second 

18 March 2013 order, Defendant contends that the 4 June 2013 

order affected a substantial right “to assert a defense and plea 

in bar to Plaintiff’s claims.” Assuming, without deciding, that 

orders rejecting pleas in bar are immediately appealable on the 

basis of the substantial right doctrine, the 4 June 2013 order 

did not reject a defense “that denie[d] [Plaintiff’s] right to 

maintain the action, and which, if established, [would have] 

destroy[ed] the action.” Mercer, 249 N.C. at 728, 107 S.E.2d at 

556. On the contrary, even if Judge Brooks erred by entering a 

consent judgment that did not accurately reflect the agreement 

set out in the 6 April 2013 memorandum of decision, a question 

 

7As a result of the fact that we have not reached the merits 

of Defendant’s challenges to the 4 June 2013 order, we express 

no opinion about the extent to which those challenges have been 

properly asserted or have any substantive validity.
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about which we express no opinion at this point, that fact would 

simply invalidate the consent judgment rather than bar 

Plaintiff’s equitable distribution claim. As a result, since 

the trial court did not reject a plea in bar in the 4 June 2013 

order, Defendant is not entitled to an immediate appeal from 

that order based on the principle set out in Mercer.

Secondly, Defendant contends that he is entitled to an 

immediate appeal from the 4 June 2013 order on the grounds that 

the issues addressed and resolved in that order are intertwined 

with other issues that remain to be resolved in this case. As

we have previously indicated, an interlocutory order affects a 

substantial right in the event that there is a risk that the 

failure to provide immediate appellate review creates a risk 

that inconsistent judgments will result. However, we are unable 

to see how a failure to consider the issues raised by 

Defendant’s challenge to the 4 June 2013 order on appeal at this 

time creates such a risk and Defendant has not satisfactorily 

explained to us how such a result would come about. Simply put, 

given that no decision has been reached with respect to the 

merits of Defendant’s claim for annulment, a failure to consider 

whether the 6 May 2010 consent judgment accurately reflects the 

agreement between the parties embodied in the 6 April 2010 
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memorandum of decision poses no risk that inconsistent decisions 

will be made with respect to any matter at issue in this case.

Finally, Defendant argues that, in the event that he is not 

entitled to an immediate appeal from the 4 June 2013 order on 

substantial right grounds, he is entitled to obtain appellate 

review of that order on an interlocutory basis as a result of 

the trial court’s decision to certify the 4 June 2013 order for 

immediate appeal. However, the trial court’s certification was 

not effective to allow an immediate appeal pursuant to N.C. Gen. 

Stat. § 1A-1, Rule 54(b), given that the 4 June 2013 order did 

not finally resolve any claim between the parties. Although 

Defendant contends that the 4 June 2013 order “represents” a 

final judgment with respect to his annulment claim, the order in 

question simply does not address, much less finally resolve, the 

validity of Defendant’s annulment claim on the merits. Thus, 

Defendant is not entitled to immediate appellate review of the 4 

June 2013 order pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b). 

As a result, given that none of the bases upon which Defendant 

relies in support of his request for immediate appellate review 

of the 4 June 2013 order have any validity, we must dismiss his 

appeal from that order as well.

III. Conclusion
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Thus, for the reasons set forth above, we conclude that 

Defendant’s appeal has been taken from two unappealable 

interlocutory orders and is not properly before this Court. As 

a result, Defendant’s appeal should be, and hereby is, 

dismissed.

APPEAL DISMISSED.

Chief Judge MARTIN and Judge MCCULLOUGH concur.

Chief Judge MARTIN concurred in this opinion prior to 1 

August 2014.