Appeal and Error--appealability--challenge to service of process
N.C.G.S. § 1-277(b) does not apply to challenges to the sufficiency of service of process,
and an appeal from such challenge was dismissed ex mero motu as interlocutory.
Caudle & Spears, P.A., by C. Grainger Pierce, Jr. and
Christopher J. Loebsack for defendant-appellant.
Eisele, Ashburn, Greene & Chapman, P.A., by John D. Greene for
plaintiff-appellee.
WYNN, Judge.
Section 1-277(b) of the North Carolina General Statutes states
“[a]ny 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[.]” N.C. Gen. Stat. § 1-277(b)
(2004). In Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146
(1982), our Supreme Court held that section 1-277(b) does not apply
to challenges to sufficiency of service of process. In this case,
Defendant appeals from an interlocutory order denying a motion todismiss for insufficient service of process after an entry of
default. As Defendant appeals from an interlocutory order, and
there is no statutory right of immediate appeal, we dismiss this
appeal as premature.
Plaintiff, Autec, Inc., filed the Complaint in this action on
12 August 2003 against Defendant, Southlake Holdings, Inc., for the
collection of a balance due for the sale and installation of car
wash equipment. Summons was issued on the same date to Southlake's
registered agent at its registered address.
The car wash at issue is located in Mecklenburg County, North
Carolina. Southlake's registered agent was Kimberly E. Fox, and
the registered address was in Huntersville, North Carolina in
Mecklenburg County.
On 13 August 2002, service was attempted by certified mail at
the registered address but was returned with the notations “Not
Deliverable as Addressed” and “Forwarding Order Expired.” On 9
September 2002, Alias and Pluries summons were issued for two
additional addresses obtained by Autec and mailed via certified
mail. But those two service attempts were returned with the
notation “Unclaimed.” Service was also attempted by the Sheriff of
Mecklenburg County but that attempt was unsuccessful.
Autec published a notice of service by publication on 17, 24,
and 31 January 2003 in the Mooresville Tribune, which has a
circulation throughout southern Iredell County and around the Lake
Norman shoreline. On 19 March 2003, Autec filed an affidavit of publication
along with a motion for entry of default and motion for default
judgment. That same day, an entry for default and a default
judgment were entered against Southlake.
On 10 December 2003, Southlake filed a motion to dismiss and
motion to set aside the default judgment and entry of default.
Following a hearing, the trial court denied Southlake's motions to
dismiss and to set aside the entry of default and granted its
motion to set aside the default judgment due to Autec's failure to
post bond pursuant to Rule 55(c) of the North Carolina Rules of
Civil Procedure. Southlake appealed.
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On appeal, Southlake argues that the trial court erred in
denying its motion to dismiss pursuant to Rule 12(b)(5) of the
North Carolina Rules of Civil Procedure as Autec did not comply
with all requirements for service by publication. We do not reach
the merits of this argument.
Although the trial court set aside the default judgment, it
left in place the entry of default against Southlake. Rule 55(a)
of the North Carolina Rules of Civil Procedure provides that:
When a party against whom a judgment for
affirmative relief is sought has failed to
plead or is otherwise subject to default
judgment as provided by these rules or by
statute and that fact is made to appear by
affidavit, motion of attorney for the
plaintiff, or otherwise, the clerk shall enter
his default.
N.C. Gen. Stat. § 1A-1, Rule 55(a) (2004). The entry of default is
interlocutory in nature and is not a final judicial action. StateEmployees' Credit Union, Inc. v. Gentry, 75 N.C. App. 260, 265, 330
S.E.2d 645, 648 (1985); Whaley v. Rhodes, 10 N.C. App. 109, 111,
177 S.E.2d 735, 736 (1970). Generally, there is no right to appeal
from an interlocutory order. See N.C. Gen. Stat. § 1A-1, Rule
54(b) (2004); Veazey v. City of Durham, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950).
Southlake contends that this case is immediately appealable
pursuant to section 1-277(b) of the North Carolina General
Statutes. Section 1-277(b) states that “[a]ny 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[.]” N.C. Gen. Stat. § 1-277(b). Here, Southlake
challenged the sufficiency of the service of process pursuant to
Rule 12(b)(5) of the North Carolina Rules of Civil Procedure. Our
Supreme Court has previously held that section 1-277(b) does not
apply to challenges to sufficiency of service of process. Love,
305 N.C. at 581, 291 S.E.2d at 146; Cook v. Cinocca, 122 N.C. App.
642, 644, 471 S.E.2d 108, 109 (1996); Sigman v. R.R. Tydings, Inc.,
59 N.C. App. 346, 347-48, 296 S.E.2d 659, 660 (1982).
The order from which Southlake seeks appeal is interlocutory
and there exists no statutory right to immediate appeal.
Accordingly, we dismiss the appeal as premature ex mero motu.
Love, 305 N.C. at 577, 291 S.E.2d at 144 (“The threshold question
which should have been considered by the Court of Appeals, although
not presented to that court, was whether an immediate appeal lies
from the trial court's orders.”)
Dismissed.
Judges HUDSON and STEELMAN concur.
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