1. Appeal and Error--appealability--interlocutory order--certification erroneous
The trial court's attempt to grant Rule 54(b) certification based on the order denying
defendants' motions to dismiss fails because the order leaves the issues as to all parties and all
claims open for future adjudication by the court.
2. Appeal and Error--appealability--interlocutory order--motion to dismiss denied--no
substantial right
Defendants' appeal from the trial court's denial of their motions to dismiss plaintiff's
complaint because of lack of personal jurisdiction, insufficiency of process, insufficiency of
service of process, and failure to state a claim upon which relief can be granted is based merely
on procedural grounds and does not affect their substantial right to due process.
Appeal by defendants Stephen Ginn, M.D., Cape Fear
Cardiology Associates, P.A., and Cumberland County Hospital
System, Inc., d/b/a Cape Fear Valley Medical Center/The Heart
Center from order entered 20 October 1998 by Judge William C.
Gore, Jr. in Cumberland County Superior Court. Heard in the
Court of Appeals 12 July 1999.
John Michael Winesette; and Reid, Lewis, Deese, Nance &
Person, by James R. Nance, Jr., for plaintiff-appellee.
Walker, Barwick, Clark & Allen, L.L.P., by Gay Parker
Stanley, for defendants-appellants Stephen Ginn, M.D. and
Cape Fear Cardiology Associates, P.A.
Patterson, Dilthey, Clay & Bryson, L.L.P., by Mark E.Anderson and Christopher J. Derrenbacher, for defendant-
appellant Cumberland County Hospital System, Inc., d/b/a/
Cape Fear Valley Medical Center/The Heart Center.
SMITH, Judge.
This action arises out of defendants' medical treatment of
plaintiff's decedent, Nathaniel Howze, who died on 25 March 1996.
Prior to the expiration of the original two-year statute of
limitation, plaintiff moved for an extension of the applicable
statute of limitation pursuant to N.C.R. Civ. P. 9(j). By order
entered 24 March 1998, plaintiff was allowed an extension up to
and including 22 July 1998 within which to commence the instant
action. Defendants Cumberland County Hospital System, Inc.,
d/b/a Cape Fear Valley Medical Center/The Heart Center
(hereinafter “Medical Center”), Stephen Ginn, M.D., and Cape Fear
Cardiology Associates, P.A. (hereinafter “Cardiology Associates”)
were not named in the motion for extension or the order granting
that extension. Further, these defendants were not served with
notice of the extension. On 17 July 1998, plaintiff filed this
action, individually and in her capacity as Administratrix of the
Estate of Nathaniel Howze, against defendants Linda K. Hughes,
M.D., Fayetteville Family Medical Care, P.A., Ginn, Cardiology
Associates, and Medical Center, alleging causes of action for
medical malpractice, wrongful death and emotional distress. Defendants subsequently moved to dismiss plaintiff's complaint
pursuant to N.C.R. Civ. P. 12(b)(2), (4), (5), (6), and 9(j).
These motions were denied, and defendants Medical Center,
Cardiology Associates, and Ginn (collectively referred to as
“defendants-appellants) appealed to this Court. Thereafter,
defendants-appellants obtained Rule 54(b) certification for
immediate appellate review.
[1]N.C.R. Civ. P. 54(b) provides,
When more than one claim for relief is
presented in an action, . . . or when
multiple parties are involved, the 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. Such
judgment shall then be subject to review by
appeal or as otherwise provided by these
rules or other statutes. In the absence of
entry of such a final judgment, any order or
other form of decision, however designated,
which adjudicates fewer than all the claims
or the rights and liabilities of fewer than
all the parties shall not terminate the
action as to any of the claims or parties and
shall not then be subject to review either by
appeal or otherwise except as expressly
provided by the rules or other statutes.
(Emphasis added.) See also Kirkman v. Wilson, 86 N.C. App. 561,
564, 358 S.E.2d 550, 552 (1987)(stating that “while Rule 54(b)
makes it possible to appeal before an entire case has been
adjudicated, it does not authorize the appeal of claims that have
not been finally adjudicated[]”). In the instant case, there hasbeen no adjudication as to any claim(s) or part(ies) within the
meaning of Rule 54(b). The order denying defendants-appellants'
motions to dismiss leaves the issues as to all parties and all
claims open for future adjudication by the court. See Howard v.
Ocean Trail Convalescent Center, 68 N.C. App. 494, 495, 315
S.E.2d 97, 99 (1984)(stating that a denial of a motion to dismiss
“simply allows an action to proceed”). Hence, the trial court's
attempt at Rule 54(b) certification fails.
[2]We note that in their motion for certification for
immediate appeal, defendants Ginn and Cardiology Associates
assert that the court's order denying their motion to dismiss
affects a substantial right--their right to due process.
Further, in light of the “contradictory rulings entered by
various Superior Court Judges,” defendants Ginn and Cardiology
Associates also assert that “appellate review of the issues
presented would be of aid and benefit to the Bar and the Court.”
We disagree. These assertions have no bearing upon a trial
court's certification under N.C.R. Civ. P. 54(b). The right to
immediate appellate review under the substantial right doctrine
is addressed in G.S. § 1-277(b) (1996).
While this Court has interpreted G.S. § 1-277(b) to allow
immediate appellate review when there is a jurisdictional
challenge as to the person or property of the defendant(s), Hartv. F.N. Thompson Const. Co., 132 N.C. App. 229, 231, 511 S.E.2d
27, 28 (1999), this right to immediate review is only applicable
when the jurisdictional challenge is substantive rather than
merely procedural. The difference was explained in Berger v.
Berger:
If defendant's motion raises a due process
question of whether his contacts within the
forum state were sufficient to justify the
court's jurisdictional power over him, then
the order denying such motion is immediately
appealable under G.S. 1-277(b). If, on the
other hand, defendant's 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).
67 N.C. App. 591, 595, 313 S.E.2d 825, 828-29 (citations
omitted), disc. review denied, 311 N.C. 303, 317 S.E.2d 678
(1984).
In the present case, defendants-appellants allege that the
trial court did not have jurisdiction in the matter because they
were not named in the motion requesting nor the order granting
plaintiff's motion for extension of time under N.C.R. Civ. P.
9(j), and were not served with a notice of that extension.
Therefore, defendants-appellants argue that the extension of the
statute of limitations under N.C.R. Civ. P. 9(j) was not
effective as to them, and the trial court erred in denying theirmotions to dismiss for lack of personal jurisdiction pursuant to
N.C.R. Civ. P. 12(b)(2), insufficiency of process pursuant to
N.C.R. Civ. P. 12(b)(4), insufficiency of service of process
pursuant to N.C.R. Civ. P. 12(b)(5), and failure to state a claim
upon which relief can be granted pursuant to N.C.R. Civ. P.
12(b)(6).
Although, defendants-appellants argue to the contrary, this
case does not present any allegations of due process proportions.
Here, defendants base their allegations purely upon procedural
grounds. The order denying defendants-appellants' motions to
dismiss, therefore, does not affect a substantial right within
the meaning of G.S. § 1-277(b).
As the judgment in the instant case does not finally
adjudicate any claim(s) as to any part(ies), the trial court's
attempt to certify this matter under Rule 54(b) fails. Further,
the order does not affect a substantial right, and is therefore,
not immediately appealable under G.S. § 1-277(b). Accordingly,
this appeal is dismissed as interlocutory.
Dismissed.
Judges JOHN and HUNTER concur.
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