An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-465

NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2003
                

DARLENE PRICE,
        Plaintiff,

    v.                            Guilford County
                                No. 93 CVD 2011
MARK ASTOR PRICE,
        Defendant.
    

    Appeal by defendant from order dated 7 January 2003 by Judge Patrice Hinnant in Guilford County District Court. Heard in the Court of Appeals 19 November 2003.

    Guilford County Attorney Jonathan V. Maxwell, by Deputy County Attorney Michael K. Newby, for plaintiff-appellee.

    Tate Law Offices, by C. Richard Tate, Jr., for defendant- appellant.

    BRYANT, Judge.

    Mark Astor Price (defendant) appeals an order dated 7 January 2003 denying defendant's motion to dismiss based on insufficiency of service of process.
    On 5 October 1993, Darlene Price (plaintiff) filed a complaint seeking child support, among other things. By order entered 29 March 1994, the trial court required defendant to pay child support.
    On 1 May 1996, plaintiff filed a motion to show cause requesting, in part, that defendant be held in contempt for failure to comply with the child support order. In response, defendantfiled a 12(b)(5) motion to dismiss, alleging that he was not served with the 5 October 1993 complaint. No order was entered by the trial court on either motion.
    On 12 November 2002, plaintiff filed another motion to show cause, and defendant filed another motion to dismiss based on insufficiency of service of process concerning the 5 October 1993 complaint. By order dated 7 January 2003, the trial court denied defendant's motion to dismiss.

_______________________

    The issue is whether the trial court's denial of defendant's motion to dismiss based on insufficiency of service of process is interlocutory and not immediately appealable.
    Generally, an order denying a 12(b) motion to dismiss is considered interlocutory and not immediately appealable. Hart v. F. N. Thompson Constr. Co., 132 N.C. App. 229, 230-31, 511 S.E.2d 27, 28 (1999); Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825,828 (1984). However, pursuant to N.C. Gen. Stat. § 1-277(b), an immediate right to appeal exists when a party's rights will be lost absent immediate appeal. N.C.G.S. § 1-277(b) (2001) (“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.”). “This Court has interpreted G.S. § 1-277(b) as allowing an immediate right of appeal only when the jurisdictional challenge is substantive rather than merely procedural.” Hart, 132 N.C.App. at 231, 511 S.E.2d at 28. A motion challenging the sufficiency of service of process is merely procedural, and thus, “'the order denying such motion is interlocutory and does not fall within the ambit of G.S. § 1-277(b).'” Id. (quoting Berger, 67 N.C. App. at 595, 313 S.E.2d at 829).
    In the instant case, defendant's appeal does not allege substantive matters of due process. Rather, defendant's appeal presents procedural matters, alleging noncompliance with service of process under the Rules of Civil Procedure. The trial court's order denying defendant's motion to dismiss based on insufficiency of service of process is interlocutory and therefore not immediately appealable. See id.
    Dismissed.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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