Cumberland County No. 09 CVS 9852.
BRYANT, Judge.
Where defendant appeals an interlocutory order without certification by the trial court that there is no reason for delay of the appeal and where defendant has failed to advance an argument showing how, without immediate appellate review, a substantial right would be affected, the appeal is dismissed.
Facts and Procedural History
This appeal arises from denial of a motion to dismiss a claim of fraud related to a June 2007 equitable distribution action between plaintiff, Kevin Paul Russ, and defendant, Denise Russ. On 1 October 2009, plaintiff filed a complaint against defendant alleging fraud regarding her conduct before, during, and after the equitable distribution hearing. Plaintiff alleged that defendant "falsely, knowingly, and fraudulently presented testimony" at the 2007 equitable distribution hearing which deprived him of the right and ability to present and provide evidence. Plaintiff also alleged that defendant fraudulently presented testimony regarding the "value and nature of certain property and assets, as a direct result of which the [d]efendant was awarded property, to the loss and detriment of the [p]laintiff[.]" The complaint seeks relief for $15,000.00 in actual damages, punitive damages, and attorneys' fees.
On 11 December 2009, defendant filed an answer and motions to dismiss plaintiff's complaint based on collateral estoppel and pursuant to Rule 12(b)(6). By order entered 28 June 2010, the trial court denied defendant's motions to dismiss. From this order, defendant appeals.
On appeal, defendant raises two issues: whether the trial court erred in denying defendant's motions to dismiss plaintiff's claims (1) based on collateral estoppel; and (2) based on failure to state a claim upon which relief may be granted under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2009).
Prior to reaching the merits of defendant's arguments, we must determine whether the trial court's order denying defendant's motions to dismiss is immediately appealable. "A judgment is either interlocutory or the final determination of the rights of the parties." N.C. Gen. Stat. § 1A-1, Rule 54(a) (2009). "Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citing Veazey v. City of Durham, 231 N.C. 357, 361, 57 S.E.2d 377, 381 (1950)). "As a general rule, interlocutory orders are not immediately appealable." Turner v. Hammocks Beach Corp., 363 N.C. 555, 558, 681 S.E.2d 770, 773 (2009) (citing Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006)). However, there are two instances where immediate appeal of an interlocutory order is available: "when the trial court certifies, pursuant to N.C.G.S. § 1A-1, Rule 54(b), that there is no just reason for delay of the appeal; and when the interlocutory order affects a substantial right under N.C.G.S. §§ 1-277(a) and 7A-27(d)(1)." Id. (citing Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999)).
In the instant case, the trial court did not certify its order denying defendant's motions to dismiss as immediately appealable under Rule 54(b). Therefore, our review is limited to whether the order "affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment." Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980) (citation omitted).
First, we note defendant's Notice of Appeal is from denial of a motion to dismiss based on collateral estoppel. Although defendant argues the denial of the Rule (12)(b)(6) motion to dismiss on the merits, she fails to set forth an argument as to how this interlocutory order affects a substantial right. We further note that an order denying a motion to dismiss based on Rule (12)(b)(6) is interlocutory and not immediately appealable. Therefore, we do not review this portion of defendant's appeal. Turner, 363 N.C. at 558, 681 S.E.2d at 773.
As to the denial of her motion to dismiss based upon collateral estoppel, Defendant, quoting Williams v. City of Jacksonville Police Dep't, 165 N.C. App. 587, 590, 599 S.E.2d 422, 426 (2004), argues that a substantial right under N.C.G.S. §§ 1-277(a) and 7A-27(d)(1) is affected because it may expose defendant to "repetitious and unnecessary lawsuits." It is settled that "the denial of a motion to dismiss a claim for relief [may] affect[] a substantial right when the motion to dismiss makes a colorable assertion that the claim is barred under the doctrine of collateral estoppel." Turner, 363 N.C. at 558, 681 S.E.2d at 773. However, we are not persuaded by defendant's assertion that the trial court's denial of her motions to dismiss "would necessarily involve retrying issues of fact previously decided between the parties."
"The burden of establishing that a claim is barred by collateral estoppel is on the party relying upon the doctrine." Bluebird Corp. v. Aubin, 188 N.C. App. 671, 678, 657 S.E.2d 55, 61 (2008) (citation omitted). In order for the doctrine of collateral estoppel to apply, the following requirements must be met: "(1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined." Id. (citation omitted).
Defendant argues that because there was a final judgment on the merits in the 2007 equitable distribution action, because both parties in the present case were parties to the 2007 equitable distribution action, and because the credibility of defendant's representations have previously been litigated, all the elements of collateral estoppel are met. Defendant contends that because determinations of credibility are implied in any judgment regarding findings of fact and because plaintiff's complaint involves the trial court's determination of the "truth or falsity of defendant's statements," "any issues which involve credibility or the truthfulness of witnesses, [like plaintiff's fraud claim,] are subject to collateral estoppel." (emphasis added). We disagree.
In the instant case, plaintiff's complaint alleged, in pertinent part, that defendant:
5. . . . falsely, knowingly, and fraudulently presented testimony that deprived the Plaintiff [of] the right and ability to be present and provide evidence in an equitable distribution action.
6. . . . falsely, knowingly, and fraudulently presented testimony as to the value and nature of certain property and assets, as a direct result of which the Defendant was awarded property, to the loss and detriment of the Plaintiff[.]
7. . . . knew [the representations] to be false, and these representations were made by Defendant with the intent to defraud Plaintiff and obtain property she should not have been entitled to receive and/or retain.
. . .
9. . . . failed and refused to release property that the Plaintiff was awarded to the Plaintiff on numerous occasions . . . [and] has now sold or converted Plaintiff's separate property to her own use[.]
10. . . . has falsely and fraudulently filed an amended income tax return for the Plaintiff's business, without disclosing the return to the Plaintiff nor advising him in any manner as to the nature of the amendment.
In an equitable distribution action, the court determines "what is the marital property and divisible property and . . . provide[s] for an equitable distribution of the marital property and divisible property between the parties[.]" N.C. Gen. Stat. § 50-20(a) (2009). The elements required for a successful claim for fraud are false representation or concealment of a material fact, reasonably calculated to deceive, made with the intent to deceive, which does in fact deceive, resulting in damage to the injured party. Carver v. Roberts, 78 N.C. App. 513, 337 S.E.2d 126, 128 (1985) (citation omitted). Plaintiff's complaint alleging fraud constitutes extrinsic or collateral fraud which "operates not upon matters pertaining to the judgment itself but relates to the manner in which it is procured." Johnson v. Stevenson, 269 N.C. 200, 205, 152 S.E.2d 214, 218 (1967). The issue of whether defendant acted fraudulently prior to, during, and following the equitable distribution action is distinct from the issues decided in the 2007 equitable distribution action. Accordingly, the issues litigated in the equitable distribution action were not identical to the issues presented in plaintiff's complaint and the doctrine of collateral estoppel does not apply.
Defendant's contention that a substantial right would be affected without immediate appeal is without merit. For the foregoing reasons, we dismiss defendant's appeal.
Appeal dismissed.
Judges MCGEE and BEASLEY concur.
Report per rule 30(e).