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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1497 NORTH CAROLINA COURT OF APPEALS Filed: 19 June 2007 WALTER B. THOMAS, III, and KAREN T. DENNY, Plaintiffs, v. DAVID THOMAS, as Executor of The Estate of Ferne W. Thomas, and Individually, Defendant. Surry County No. 05 CVS 907

Court of Appeals Slip Opinion

Appeal by plaintiffs from an order entered 17 August 2006 by Heard in

Judge Anderson D. Cromer in Surry County Superior Court. the Court of Appeals 24 May 2007.

J.E. Thornton, P.A., by Jack E. Thornton, Jr., for plaintiffappellants. Gardner, Gardner & Campbell, PLLC, by John C. W. Gardner and Hugh B. Campbell, III, for defendant-appellee. BRYANT, Judge. Walter B. Thomas, III, and Karen T. Denny (plaintiffs) appeal from an order entered 17 August 2006 granting partial summary judgment in favor of David Thomas (defendant). For the reasons

stated herein, we dismiss this appeal because it is from an interlocutory order which does not affect a substantial right. Facts and Procedural History

-2On 26 July 2005, plaintiffs filed this action seeking relief from defendant for actions taken by defendant in his capacity as executor of the estate of Ferne W. Thomas. Following the filing of

an Answer to the Complaint, defendant filed a Motion for Partial Summary Judgment. This motion came on for hearing before the

Honorable Anderson D. Cromer, Judge Presiding, at the 24 July 2006 session of the Superior Court of Surry County, North Carolina. After hearing arguments of counsel and the submission of written memoranda by the parties, on 17 August 2006, the trial court entered an order granting defendant's Motion for Partial Summary Judgment and dismissed plaintiffs' claims regarding defendant's sale of the decedent's home and subsequent payment of the federal tax lien of plaintiff, Karen T. Denny. Plaintiffs subsequently filed a motion to amend the order for partial summary judgment, seeking certification from the trial court under Rule 54(b) of the North Carolina Rules of Civil Procedure allowing an appeal of the issues addressed by that order. The trial court did not rule on plaintiffs' Rule 54(b) motion and set the matter for trial. In response, plaintiffs filed a

voluntary dismissal without prejudice on 20 September 2006 as to the remaining issues in the Complaint and gave notice of appeal on 25 September 2006. _________________________ The dispositive issue before this Court is whether this appeal is from an interlocutory order that does not affect a substantial right of plaintiffs. Interlocutory orders and judgments are those

-3"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) (citation omitted). "Generally, there is no right to immediate appeal from Milton v. Thompson, 170 N.C. App. 176,

an interlocutory order."

178, 611 S.E.2d 474, 476 (2005) (citing N.C. Gen. Stat.

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