Appeal and Error--appealability--sufficiency of service of process--interlocutory order
Defendant's appeal from the trial court's order finding under N.C.G.S. § 1A-1, Rule
60(b) that plaintiff had obtained sufficient service of process over defendant in an automobile
negligence action is dismissed as interlocutory even though the trial court certified the appeal
under N.C.G.S. § 1A-1, Rule 54(b), because: (1) a trial judge cannot denominate his decree as a
final judgment and make it immediately appealable under Rule 54(b) if it is not such a judgment;
and (2) a motion raising a question of sufficiency of service or process is interlocutory and does
not fall within N.C.G.S. § 1-277(b).
Patterson, Dilthey, Clay & Bryson, L.L.P., by G. Lawrence
Reeves, Jr., and Currie, Becton & Stewart, by Elwood Becton
for plaintiff-appellees.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Steven M Sartorio and Christopher G. Smith for defendant-
appellant.
WYNN, Judge.
Defendant argues on appeal that the trial court erred in
finding under Rule 60(b) that plaintiff had obtained sufficient
service of process over him. However for controlling reasons set
forth in Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E.2d 484 (1980)and Berger v. Berger, 67 N.C. App. 591, 313 S.E.2d 825 (19
84), we
must dismiss this appeal as interlocutory.
Plaintiff brought this automobile negligence action against
“Scott Curtis”; in fact, defendant's name is “Curtis Scott.”
Apparently, the confusion in inverting defendant's name originated
with the accident report which on one page identified defendant as
“Scott Jerome Curtis” but on the second page identified him as
“Curtis Jerome Scott.”
Initially, the trial court granted defendant's motion to
dismiss this action under Rule 12(b)(2)(4) and (5), finding that
“there was no evidence of proper service on Curtis Jerome Scott”
and that “[t]he statute of limitations of this matter is expired.”
Subsequently, the trial court granted plaintiff relief from that
dismissal under Rule 60(b) finding that (1) “Scott Curtis” was a
misnomer that did not invalidate either the Complaint or Summons
and (2) correcting the name to “Curtis Jerome Scott” does not
constitute another party. The trial court concluded that “amending
the Summons and Complaint to correct the misnomers contained
therein relates back to the date original Summons and Complaint
were filed.” Thereafter, the trial court certified this matter for
review under Rule 54(b), and defendant brought this appeal.
Preliminarily, it should be noted that “Rule 54(b) of the
Rules of Civil Procedure allows appeal if the specific action of
the trial court from which appeal is taken is final and the trial
judge expressly determines that there is no just reason to delay
appeal.” Cagle v. Teachy, 111 N.C. App. 244, 246, 431 S.E.2d 801,
803 (1993) (emphasis omitted). “[A] trial judge by denominatinghis decree a final judgment cannot make it immediately appealable
under Rule 54(b) if it is not such a judgment.” Tridyn Indus.,
Inc. v. American Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443,
447 (1979). See also Morris Commun. Corp. v. City of Asheville,
145 N.C. App. 597, ___ S.E.2d ___ (August 21, 2001). In Metcalf v.
Palmer, supra, this Court dismissed a defendant's attempt to appeal
from a granted Rule 60(b)(1) motion holding that:
The order appealed from is interlocutory. It
does not affect any substantial right of
defendants which cannot be protected by timely
appeal from the trial court's ultimate
disposition of the entire controversy on the
merits. Its only effect is to require
defendants to face a trial on the merits .
. . .
46 N.C. App. at 624, 265 S.E.2d 484. Accord Bailey v. Gooding, 301
N.C. 205, 270 S.E.2d 431 (1980) (An order allowing a motion under
Rule 60(b) is not appealable because it is interlocutory and does
not affect a substantial right.); Blackwelder v. Dept. of Hum.
Res., 60 N.C. App. 331, 333, 299 S.E.2d 777, 779 (1983) (An appeal
is interlocutory “if it does not determine the issues but directs
some further proceeding preliminary to final decree.”).
Moreover, in determining the appealability of a personal
jurisdiction issue, this Court in Berger v. Berger, supra, held
that:
[i]f 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 a motion is immediately
appealable under G.S. 1-277(b). If, on the
other hand, defendant's motion, though couchedin terms of lack of jurisdiction under Rule
12(b)(2), actually raises a question of
sufficiency of service or process, the order
denying such motion is interlocutory and does
not fall within the ambit of G.S. 1-277(b).
67 N.C. App. at 595, 313 S.E.2d at 828-29.
In the present case, defendant does not question whether his
contacts with North Carolina were sufficient to justify the court's
jurisdictional powers over him. Rather, the underlying basis of
defendant's argument concerns whether there was proper or
sufficient service over him.
Since Berger prohibits such appeals as interlocutory and
certification of the case under Rule 54(b) does not make it a final
judgment, we dismiss this appeal as premature.
Appeal dismissed.
Judges HUNTER and TYSON concur.
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