LAURENCE B. WILSON, JR.,
and ELIZABETH B. WILSON,
Plaintiffs
v
.
Carteret County
No. 00 CVS 786
MICHAEL TAYLOR,
Defendant
Kennedy Covington Lobdell & Hickman, L.L.P., by A. Lee
Hogewood, III, for plaintiffs-appellees.
Wheatly, Wheatly, Nobles & Weeks, P.A., by C.R. Wheatly, Jr.,
for defendant-appellant.
WALKER, Judge.
Plaintiffs filed this action on 31 July 2000, seeking a
judgment quieting title to certain real property located in their
residential subdivision and for a declaratory judgment pursuant to
N.C. Gen. Stat. § 1-253 declaring the validity of their right to
use this property as a landing. Defendant answered and
counterclaimed for a judgment declaring that he owned the real
property in fee simple, or alternatively, that he had acquired
title through adverse possession. Defendant also moved the trial
court to dismiss plaintiff's action for failing to join necessary
parties pursuant to Rule 19 of the Rules of Civil Procedure. On 19February 2001, the trial court denied defendant's motion and
defendant appealed.
We note the real property in dispute in this case is the
identical property at issue in Hill, et. al. v. Taylor, ___ N.C.
App. ___, ___ S.E.2d. ___ (No. COA01-155, filed 19 March 2002).
However, because the trial court's order in Hill addresses issues
different from the one at issue here, we elect not to consolidate
the cases for discussion.
We initially address whether defendant's appeal is properly
before this Court. Generally, an order denying a motion to dismiss
is not immediately appealable as it is interlocutory in nature.
See Thompson v. Norfolk Southern Ry. Co., 140 N.C. App. 115, 535
S.E.2d 397 (2000); Country Club of Johnston County, Inc. v. U.S.
Fidelity and Guar. Co., 135 N.C. App. 159, 519 S.E.2d 540 (1999),
disc. rev. denied, 351 N.C. 352, 542 S.E.2d 207 (2000). However,
an interlocutory order may be appealed provided: (1) it affects a
substantial right, or (2) it is final as to some but not all the
claims or parties and the trial court certifies pursuant to Rule
54(b) that there is no just reason to delay the appeal. Bartlett
v. Jacobs, 124 N.C. App. 521, 477 S.E.2d 693 (1996), disc. rev.
denied, 345 N.C. 340, 483 S.E.2d 161 (1997); see also N.C. Gen.
Stat. § 1A-1, Rule 54(b)(1999).
Defendant asserts that there are other individuals who are
necessary plaintiffs to this lawsuit; therefore, the trial court's
order denying his motion to dismiss affects a substantial right.
However, the denial of defendant's motion neither prevents him fromraising the issue as a defense at trial nor prohibits him from
moving to join any party he deems may be necessary for a proper
determination of his counterclaim. See N.C. Gen. Stat. § 1A-1,
Rule 12(h)(2)(1999)(permitting a defense for failure to join
necessary parties “at the trial on the merits”). Moreover, this
Court has previously held that the denial of a motion to dismiss
for failure to join a necessary party does not by itself affect a
substantial right. See Fraser v. Di Santi, 75 N.C. App. 654, 331
S.E.2d 217, disc. rev. denied, 315 N.C. 183, 337 S.E.2d 856 (1985);
Auction Co. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (1979).
We conclude the trial court's denial of defendant's motion
does not affect a substantial right. Furthermore, the trial court
has not certified its order pursuant to Rule 54(b). Therefore, we
conclude defendant's appeal is premature and must be dismissed.
Appeal dismissed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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