NO. COA03-465
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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