Appeal by Clifford J. Matthews, Jr. (defendant) from order
entered 6 October 2004 by Judge Marcus L. Johnson and cross-appeal
by plaintiffs from order entered 23 February 2004 by Judge Beverly
T. Beal and order entered 13 April 2004 by Judge James W. Morgan in
Mecklenburg County Superior Court. This case was originally heard
in the Court of Appeals 24 August 2005 and we dismissed defendant's
appeal by order entered 17 August 2005. By order dated 1 December
2005, our Supreme Court remanded this case to the Court of Appeals
for further consideration.
H. Edward Knox and Lisa G. Godfrey, for plaintiffs-
appellees/cross-appellants Gary Harris, Joseph B. Kinard, John
S. Eagle, Waymon Tate, Jr., Rayford Jones, John L. McGriff,
and Lesley G. Bellinger.
Shirley L. Fulton and Bartina L. Edwards, for plaintiff-
appellee/cross-appellant Saint Luke Missionary Baptist Church.
Poyner & Spruill LLP, by P. Marshall Yoder and Joshua B.
Durham, for defendant-appellant/cross-appellee.
This case was remanded to this Court by the Supreme Court's 1
December 2005 order ruling defendant's petition for writ of
certiorari be Allowed for the limited purpose of remanding this
case to the Court of Appeals for more thorough consideration in
light of Tubiolo v. Abundant Life Church, Inc., 167 N.C. App. 324,
605 S.E.2d 161 (2004), disc. rev. denied, 359 N.C. 326, 611 S.E.2d
853, cert. denied, 126 S.Ct. 350, 163 L. Ed. 2d 59 (2005).
Gary Harris, Joseph B. Kinard, John S. Eagle, Waymon Tate,
Jr., Rayford Jones, John L. McGriff, and Lesley G. Bellinger
(collectively, plaintiffs), as members, filed suit on behalf of
Saint Luke Missionary Baptist Church against defendant, the pastor
of the church, alleging misappropriation of church funds.
Defendant filed a motion to dismiss for lack of subject matter
jurisdiction, which the trial court denied. Defendant appealed.
Plaintiffs filed a motion to dismiss defendant's appeal.
This Court granted plaintiff's motion to dismiss defendant's
appeal as interlocutory. An order denying a motion to dismiss for
lack of subject matter jurisdiction is interlocutory and not
immediately appealable. Shaver v. Construction Co.
, 54 N.C. App.
486, 487, 283 S.E.2d 526, 527 (1981). If, however, 'the trial
court's decision deprives the appellant of a substantial right
which would be lost absent immediate review,' we may review the
appeal under N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1).
McCallum v. N.C. Coop. Extension Serv.
, 142 N.C. App. 48, 50, 542S.E.2d 227, 230-31 (quoting N.C. Dept. of Transportation v. Page
119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995)). Defendant
argues the order denying his motion to dismiss affects a
substantial right, i.e., his right to be free from judicial
interference into matters of church governance and ecclesiastical
On remand we now consider this Court's previous dismissal of
defendant's appeal in light of Tubiolo v. Abundant Life Church,
. In Tubiolo
, disputes arose between the plaintiffs, members of
the church, and the church over its handling of finances. 167 N.C.
App. at 325, 605 S.E.2d at 162. The church terminated the
plaintiffs' memberships. Id
. Plaintiffs sought an injunction
enjoining the church from terminating their memberships. Id
326, 605 S.E.2d at 162. The church appealed the trial court's
denial of its motion to dismiss. Id
. at 326, 605 S.E.2d at 163.
This Court held that the plaintiffs' membership in the
[church] is in the nature of a property interest, and that the
courts do have jurisdiction over the very narrow issue of whether
the bylaws were properly adopted by the defendant. Id
. at 329,
605 S.E.2d at 164. This Court concluded this inquiry can be made
without delving into or determining ecclesiastical matters. Id
329, 605 S.E.2d at 164-65.
opinion did not address whether the appeal in that
case was interlocutory. Present in Tubiolo
, but absent in this
case, was the trial court's finding under Rule 54(b) that its order
affects a substantial right of the Defendant and that there is nojust reason to delay an appeal therefrom. Id
. at 326, 605 S.E.2d
at 163; N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003). The holding and
discussion in Tubiolo
does not change the fact that this appeal is
, 54 N.C. App. at 487, 283 S.E.2d 527.
Defendant argues his appeal should not be dismissed because he
has a substantial right of being free from courts interfering in
ecclesiastical matters. The property right involved in this case
is allegedly misappropriated church funds. However, the assertion
of that property right belongs to plaintiffs at bar rather than
, 167 N.C. App. at 329, 605 S.E.2d at 164. The
trial court here did not certify its order as affecting a
substantial right and immediately appealable. N.C. Gen. Stat. §
1A-1, Rule 54(b). In addition, by its order dated 1 December 2005,
our Supreme Court allowed plaintiff's motion to dismiss defendant's
appeal to that Court for lack of substantial constitutional
After further consideration in light of Tubiolo
, this appeal
was properly dismissed. We fail to discern any substantial right
defendant will lose by this Court's decision not to review this
Panel consisting of:
Judges HUNTER, TYSON, and STEELMAN.
Report per Rule 30(e).
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