An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1613


Filed: 18 November 2003



v .                         New Hanover County
                            No. 98 CVS 2857


    Appeal by defendants from orders entered 12 September 2002 and 10 October 2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 14 October 2003.

    Johnson Lambeth & Brown, by Robert White Johnson and Anna Johnson Averitt for plaintiff-appellees.

    Ward & Smith, P.A., by George K. Freeman, Jr. for defendant- appellants.

    ELMORE, Judge.

    Plaintiffs Bruggeman, Newton, and McGonigal filed suit for real estate broker's fees. Defendants Meditrust Acquisition Company (MAC) and Meditrust Company, LLC (MCLLC) filed a motion to dismiss, which was denied. Defendants appealed, and this Court reversed the trial court's order refusing to dismiss with regard to MAC, but affirmed with regard to MCLLC. Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 532 S.E.2d 215 (2000). Plaintiffs moved to reopen the case. Defendants moved to dismiss for lack of subject matter jurisdiction, which was denied. Defendants moved to dismiss as to plaintiffs Newton and McGonigal for lack of standing, which was granted. Defendants moved to amend the order to be certified as a final judgment as to fewer than all the parties and that there was no just reason to delay the appeal, per N.C. Rule of Civil Procedure 54(b). That motion was denied. Defendants now appeal the denial of certification and the denial of the motion to dismiss. Plaintiff did not file a notice of appeal, but attempted to assign error to the dismissal of the other two plaintiffs.

    Defendants first assign error to the trial court's 10 October 2002 order denying their Motion to Certify pursuant to Rule 54(b) the 12 September 2002 Order which denied their motion to dismiss for lack of subject matter jurisdiction, and dismissed two of three plaintiffs, as a final judgment, and that there is no reasonable ground to delay appeal.
    Rule 54(b) provides that when a suit involving multiple claims or multiple parties has been resolved as to fewer than all of the parties, then “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 . . .” N.C.R. Civ. P. 54(b) (2003). It is within the trial court's discretion to so certify the judgment or not. If the trial court does not certify in an order that there is no just reason to delay an appeal, that does not automatically defeat an interlocutoryappeal, if there is a substantial right implicated. Under section 1-277 of our General Statutes,
            (a) An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; or which in effect determines the action, and prevents a judgment from which an appeal might be taken; or discontinues the action, or grants or refuses a new trial.
            (b) Any interested party shall have the right of immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of the defendant or such party may preserve his exception for determination upon any subsequent appeal in the cause.

N.C. Gen. Stat. § 1-277 (2001). See generally Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 511 S.E.2d 309 (1999).
    It follows that if the defendants had a substantial right which was affected by delaying the appeal, this Court would hear the appeal regardless of the trial court's determination to not certify it under Rule 54(b). However, as will be discussed below, the order was not immediately appealable. The trial court was within its discretion in its determination, and the defendants were not prejudiced by the denial of the motion. We therefore affirm the trial court's ruling denying the motion to certify the judgment.
    The defendant also assigns error to the trial court's 12 September 2003 order denying their motion to dismiss for lack of subject matter jurisdiction. Such an order is not immediatelyappealable. Defendants filed a petition for writ of certiorari to this Court, and it was referred to the panel and denied in an order signed on 10 September 2003.
    Our Supreme Court stated in Teachy v. Coble Dairies, Inc., 306 N.C. 324, 326-27, 293 S.E.2d 182, 184 (1982):
        In holding that the denial of a motion under Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction is not immediately appealable, the Court of Appeals relied on Shaver v. Construction Co., 54 N.C. App. 486, 283 S.E. 2d 526 (1981), wherein it interpreted G.S. 1-277. That statute provides for immediate appeal of certain orders and determinations of trial judges. An order granting a motion to dismiss for lack of subject matter jurisdiction is immediately appealable under G.S. 1-277(a), because it determines or discontinues the action. G.S. 1-277(b) permits the immediate appeal of a ruling, whether granting or denying a motion to dismiss under Rule 12(b)(2), as to the court's jurisdiction over the defendant's person or property. The Shaver opinion acknowledged that, while G.S. 1-277(b) permits the immediate appeal of an order denying a motion made pursuant to Rule 12(b)(2) to dismiss for lack of jurisdiction over the person, that statute does not apply to orders denying motions made pursuant to Rule 12(b)(1) to dismiss for lack of subject matter jurisdiction. The Court of Appeals held that such orders, the same as other orders not determinative of an action, are interlocutory and therefore not immediately appealable. Under the principle of inclusio unius est exclusio alterius, the reasoning of the Court of Appeals on this point is sound. The contrary holding in Eller v. Coca-Cola Co., 53 N.C. App. 500, 281 S.E. 2d 81 (1981) and Kilby v. Dowdle, 4 N.C. App. 450, 166 S.E. 2d 875 (1969) should be disregarded.

Teachy v. Coble Dairies, Inc., 306 N.C. 324, 326-27, 293 S.E.2d 182, 184 (1982).    Appeal of a denial of a motion to dismiss for lack of subject matter jurisdiction is interlocutory. We therefore dismiss this assignment of error.
    Finally, the plaintiff inserted in the record a cross- assignment of error. Because we have affirmed the trial court in part and dismissed the second assignment of error, we do not reach the cross-assignment.
    Affirmed in part, dismissed in part.
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

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