Sweeney v Penn, 151 NC App 751 (01-1332) 08/06/2002

Appeal by defendant from order entered 5 September 2001 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 July 2002.

Hefferon & Hefferon, by Paul Hefferon, for plaintiffs- appellees.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Neil P. Andrews, Terry L. Wallace, and Shannon P. Herndon, for defendant-appellant.

WALKER, Judge.

    Plaintiffs initiated this personal injury action against defendant in Mecklenburg County Superior Court on 21 December 2000. Plaintiffs sought damages for personal injuries and loss of consortium, arising out of a three-car automobile accident, which occurred on U.S. Highway 1 in Rockingham, North Carolina. At the time of the accident and the filing of the complaint, plaintiffs were residents of Spring Hill, Florida. At the time of service, defendant was residing in Sumter, South Carolina. Neitherplaintiffs nor defendant has ever been a resident of North Carolina.
    On 22 June 2001, defendant filed a “Motion to Dismiss, Motion to Change Venue, Answer of Defendant Drewry H. Penn, and Counterclaim for Contribution.” Defendant argued that plaintiff's complaint should be stricken as it was unverified and filed by a person who was not licensed to practice law in this State. Defendant also argued that the action should be dismissed because the statute of limitations and repose would act as a complete bar to plaintiffs' claims. Defendant further argued that the complaint should be dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)-(6)(2001). On 30 July 2001, plaintiffs voluntarily dismissed (without prejudice) the claims of Michael A. Scinta. At the same time, plaintiffs moved to amend their complaint to add the signature of an attorney who was licensed to practice law in this State. The various motions of plaintiffs and defendant were heard in the trial court on 4 September 2001. After hearing the arguments of counsel and considering briefs and other evidence, the trial court denied defendant's motion to change venue, motion to strike, and his motions to dismiss pursuant to Rule 12(b)(1)-(6). The trial court allowed plaintiffs' motion to amend their complaint.
    On appeal, defendant specifically assigns error to the trial court's denial of his Rule 12(f) motion to strike and his Rule 12(b)(4),(5) and (6) motions to dismiss. However, defendant failed to assign as error or present any meaningful argument as to thedenial of his Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.
    As defendant recognizes, the order from which he appeals is interlocutory. Generally, there is no right to immediate appellate review of an interlocutory order. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). However, a party may be entitled to immediate appeal pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27(d) or N.C. Gen. Stat. § 1A-1, Rule 54(b). Id.
    It is well settled that the denial of a Rule 12(f) motion to strike and Rule 12(b)(4), (5) and (6) motions to dismiss does not affect a substantial right; therefore, it is not immediately appealable. See Raines v. Thompson, 62 N.C. App. 752, 753, 303 S.E.2d 413, 414 (1983)(Rule 12(f) motion to strike); Seabrooke v. Hagin, 83 N.C. App. 60, 60, 348 S.E.2d 614, 615 (1986)(Rules 12(b)(4) and 12(b)(5) motions to dismiss); Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 828, disc. rev. denied, 311 N.C. 303, 317 S.E.2d 678 (1984)(Rule 12(b)(6)motion to dismiss). Our appellate courts have found, however, that an adverse ruling as to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, which “raises a due process question of whether his contacts within the forum state were sufficient to justify the court's jurisdictional power over him,” is immediately appealable under N.C. Gen. Stat. § 1-277(b). Berger, 67 N.C. App. at 595, 313 S.E.2d at 829.
    The trial court did not certify the matter as immediately appealable pursuant to Rule 54(b). Moreover, defendant hasassigned error to and argued only those matters which do not affect a substantial right. Therefore, those matters are not immediately appealable.
    Finally, we decline defendant's request to review the trial court's denial of his Rule 12(b)(2) motion to dismiss under N.C.R. App. P. 2, as defendant has not fully developed the record and arguments to facilitate such review. See Williams v. Williams, 120 N.C. App. 707, 713, 463 S.E.2d 815, 820 (1995), aff'd, 343 N.C. 299, 469 S.E.2d 553 (1996)(providing that an appellant bears “ultimate responsibility” for composing the record and including therein any evidence and materials pertinent to a particular argument).
    In light of the foregoing, this appeal is dismissed as interlocutory.
    Dismissed.
    Judges THOMAS and BIGGS concur.
    Report per Rule 30(e).

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