1. Appeal and Error--preservation of issues--notice of appeal
Although defendant contends the trial court erred by failing to dismiss plaintiff's action
under N.C.G.S. § 1A-1, Rule 12(b)(6), the Court of Appeals lacks jurisdiction to address this
issue because defendant's notice of appeal refers only to the 7 October 1999 entry of summary
judgment and makes no reference to the earlier order denying defendant's motion to dismiss.
2. Process and Service--failure to serve summons--general appearance--answer failing
to contest personal jurisdiction
The trial court had jurisdiction over defendant when it issued its 1988 judgment even
though defendant contends he was never served with a summons, because: (1) defendant made a
general appearance before the trial court in the 1988 case by filing an answer that failed to
contest personal jurisdiction; (2) it remained possible for plaintiff to serve an effective summons
upon defendant since plaintiff's action against defendant had not yet been discontinued under
N.C.G.S. § 1A-1, Rule 4(e); and (3) defendant's general appearance before the trial court
obviated the need for plaintiff to serve defendant with a summons in order to grant the trial court
jurisdiction over defendant, N.C.G.S. § 1-75.7.
3. Judgments--interest--only from underlying award
The trial court's award to plaintiff of interest on the interest gained since the 1988
judgment is remanded to the trial court for modification, because plaintiff is only entitled to
future interest on the underlying 1988 award of $170,527.92.
F. Douglas Canty, Senior Assistant City Attorney, for
plaintiff-appellee.
William D. McNaull, Jr. for defendant-appellant.
McGEE, Judge.
Plaintiff was awarded a judgment against defendant of
$170,527.92 plus interest and costs on 22 August 1988. Plaintiff
filed a verified complaint on 24 July 1998 alleging that the 1988judgment remained unsatisfied. Defendant filed a motion to dismiss
under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) for failure to state a
claim upon which relief could be granted, and plaintiff moved for
summary judgment.
Following a hearing on 14 April 1999, the trial court denied
defendant's motion to dismiss and delayed ruling on plaintiff's
motion for summary judgment "pending further proceedings."
Defendant filed an answer asserting that the trial court issuing
the 1988 judgment had no jurisdiction over defendant because the
summons and complaint were never served upon defendant, no alias or
pluries summons was ever issued by the clerk, and defendant did not
file an answer until more than thirty days after the summons was
issued. The trial court granted summary judgment in favor of
plaintiff on 7 October 1999 and awarded plaintiff $307,041.25 plus
interest and costs. Defendant appeals the grant of summary
judgment.
[1]Defendant first assigns error to the failure of the trial
court to dismiss plaintiff's action pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(6). However, defendant's notice of appeal refers
only to the 7 October 1999 entry of summary judgment and makes no
reference to the earlier order denying defendant's motion to
dismiss. We therefore lack jurisdiction to address defendant's
first assignment of error. See N.C.R. App. P. 3(d); Von Ramm v.
Von Ramm, 99 N.C. App. 153, 157, 392 S.E.2d 422, 425 (1990);
Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483
(1994), aff'd, 341 N.C. 702, 462 S.E.2d 219 (1995). [2]Defendant next assigns error to the entry of summary
judgment in favor of plaintiff on the grounds that the trial court
that granted the 1988 judgment lacked jurisdiction over defendant.
Because a judgment rendered without jurisdiction is void, defendant
is entitled to collaterally attack the 1988 judgment through the
present action. See Dunn v. Wilson, 210 N.C. 493, 494, 187 S.E.
802, 803 (1936). Defendant contends that he was never served with
a summons in the 1988 action, and therefore that the trial court
never had jurisdiction over him.
The defenses of insufficiency of process and insufficiency of
service of process are waived if they are not raised in a motion or
responsive pleading before the trial court. See N.C. Gen. Stat. §
1A-1, Rule 12(h)(1) (1999). Defendant acknowledges that he filed
an answer to plaintiff's complaint in the 1988 action, and that he
did not raise the defenses of insufficiency of process or
insufficiency of service of process in his answer. Defendant
argues, however, that because he filed his answer after the
expiration of the time limit for serving a summons, the summons had
already lost effectiveness and become functus officio and therefore
the trial court was unable to gain jurisdiction over him.
Service of process is not the sole way by which a trial court
gains personal jurisdiction over a defendant.
A court of this State having jurisdiction of
the subject matter may, without serving a
summons upon him, exercise jurisdiction in an
action over a person . . . [w]ho makes a
general appearance in an action[.]
N.C. Gen. Stat. § 1-75.7 (1999). Defendant made a generalappearance before the trial court in the 1988 case by filing an
answer that failed to contest personal jurisdiction. See Stern v.
Stern, 89 N.C. App. 689, 692, 367 S.E.2d 7, 9 (1988). Defendant
filed his answer fifty-one days after plaintiff's summons was
issued, after the summons had become functus officio under N.C.
Gen. Stat. § 1A-1, Rule 4(c) (1999) but before plaintiff's action
against defendant was discontinued pursuant to N.C. Gen. Stat. §
1A-1, Rule 4(e) (1999). Because plaintiff's action against
defendant had not yet been discontinued, it remained possible for
plaintiff to serve an effective summons upon defendant. See Lemons
v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655 (1988).
Defendant's general appearance before the trial court obviated the
need for plaintiff to serve defendant with a summons in order to
grant the trial court jurisdiction over defendant. See N.C. Gen.
Stat. § 1-75.7.
We therefore conclude that the trial court did have
jurisdiction over defendant when it issued its 1988 judgment.
Because defendant's collateral attack on the 1988 judgment fails,
we affirm the trial court's summary judgment against defendant in
the present case.
[3]Finally, defendant assigns error to the trial court's
award to plaintiff of interest on the interest gained since the
1988 judgment. Plaintiff concedes that, under NCNB v. Robinson, 80
N.C. App. 154, 341 S.E.2d 364 (1986), plaintiff is entitled to
future interest only on the underlying 1988 award of $170,527.92.
We therefore remand this case to the trial court for modificationof the judgment to include the award of $307,041.25 plus interest
from 7 October 1999 only upon $170,527.92.
Affirmed in part, reversed in part and remanded.
Judges WYNN and THOMAS concur.
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