Opinion
No. COA12–1265.
2013-08-6
Martin PEERY, Plaintiff, v. Laura Seibert HALL and Chase Building Company, a North Carolina Corporation, Defendants.
Van Camp, Meacham & Newman, PLLC, by Michael J. Newman and Thomas M. Van Camp; and Rowland & Yauger, by Michael C. Rowland, for plaintiff-appellee. Ragsdale Liggett PLLC, by William W. Pollock and Angela M. Allen, for defendants-appellants.
Appeal by defendants from order entered 16 July 2012 by Judge Abraham P. Jones in Durham County Superior Court. Heard in the Court of Appeals 12 March 2013. Van Camp, Meacham & Newman, PLLC, by Michael J. Newman and Thomas M. Van Camp; and Rowland & Yauger, by Michael C. Rowland, for plaintiff-appellee. Ragsdale Liggett PLLC, by William W. Pollock and Angela M. Allen, for defendants-appellants.
GEER, Judge.
Defendants Laura Seibert Hall and Chase Building Company appeal from the trial court's order denying their motion to dismiss plaintiff Martin Peery's complaint under Rules 12(b)(4) and 12(b)(5) of the North Carolina Rules of Civil Procedure for insufficiency of process and insufficiency of service of process. Under our Supreme Court's decision in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982), the trial court's order may not be immediately appealed. Consequently, defendants' appeal is dismissed.
Facts
Mr. Peery filed suit on 16 February 2012 against Ms. Hall and Chase Building Company asserting claims for negligence, gross negligence, and negligence per se arising out of injuries suffered when, while inspecting the property for defendants, he fell into a 14–foot hole. The complaint was served on both defendants by a private process server on 14 March 2012.
Defendants filed an answer on 11 May 2012, substantially denying the allegations of the complaint and moving to dismiss based on insufficiency of process and insufficiency of service of process pursuant to Rules 12(b)(4) and 12(b)(5). Defendants contended that Mr. Peery had failed to serve the complaint in a method that complied with Rules 4(a) and 4(j)(6) of the North Carolina Rules of Civil Procedure.
The trial court denied defendants' motion to dismiss in an order entered 16 July 2012. Defendants filed a written notice of appeal on 9 August 2012. Mr. Peery has moved to dismiss the appeal as interlocutory.
Discussion
Initially, we must address whether this Court has jurisdiction over defendants' appeal of the denial of their motion to dismiss, an interlocutory order. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“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.”); see also Berger v. Berger, 67 N.C.App. 591, 595, 313 S.E.2d 825, 828 (1984) (holding that “orders denying motions to dismiss are interlocutory and nonappealable, the reason being to prevent delay and expense from fragmentary appeals and to expedite the administration of justice”).
“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). It is well established that “[a]s a general rule, interlocutory decrees are immediately appealable only when they affect a substantial right of the appellant and will work an injury to him if not corrected before an appeal from a final judgment.” Love, 305 N.C. at 578, 291 S.E.2d at 144. Consequently, “[a]n interlocutory decree which does not affect a substantial right is reviewable only ... upon an appeal from the final judgment in the cause.” Id.
In Love, 305 N.C. at 581, 291 S.E.2d at 146, the Supreme Court specifically addressed whether denial of a motion to dismiss under Rules 12(b)(4) and 12(b)(5) affected a substantial right that would be lost absent immediate appeal. The Court held in Love:
Defendant here challenged the sufficiency of the process itself and the sufficiency of the service to give notice. These objections fall within the ambit of Rule 12(b)(4) and Rule 12(b)(5), respectively. Because defendant made no claim that its insured had no “minimum contacts” with this state [ ] (indeed, it appears that it could not make such a claim)[,] the trial court's ruling is not one concerning its jurisdiction over the person and is interlocutory and not immediately appealable.
Finding as we have that the rulings from which defendant seeks to appeal are interlocutory and that there exists no statutory right to an immediate appeal, we must dismiss the appeal as premature even though the issue of appealability was not raised by the parties.
The Court of Appeals, therefore, erred by not dismissing the appeal ex mero motu.
Id. at 581–82, 291 S.E.2d at 146.
Although defendants, in this case, invoke principles of due process, the Supreme Court in Love made plain that only due process arguments relating to “minimum contacts” issues may be immediately appealed. See id. at 581, 291 S.E.2d at 146 (“Allowing an immediate appeal only for ‘minimum contacts' jurisdictional questions precludes premature appeals to the appellate courts about issues of technical defects which can be fully and adequately considered on an appeal from final judgment, while ensuring that parties who have less than ‘minimum contacts' with this state will never be forced to trial against their wishes.”). See also Berger, 67 N.C.App. at 595, 313 S.E.2d at 828–29 (“If [defendants'] motion raises a due process question of whether [their] contacts within the forum state were sufficient to justify the court's jurisdictional power over [them], then the order denying such motion is immediately appealable under G.S. 1–277(b). If, on the other hand, [defendants'] motion, though couched in terms of lack of jurisdiction under Rule 12(b)(2), actually raises a question of sufficiency of service or process, then the order denying such motion is interlocutory and does not fall within the ambit of G.S. 1–277(b).”).
Here, as in Love, Ms. Hall and Chase Building Company based their motion to dismiss on Rules 12(b)(4) and 12(b)(5) and made no contention that either party lacked minimum contacts under Rule 12(b)(2). Accordingly, Love controls, and we are required to dismiss defendants' appeal.
Dismissed. Judges McGEE and DAVIS concur.
Report per Rule 30(e).