NO. COA07-84
Appeal by defendants from an order entered 31 August 2006 by
Judge Theodore S. Royster in Davie County District Court. Heard in
the Court of Appeals 28 August 2007.
Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker
and Christopher A. Raines, attorneys for plaintiff-appellee.
Robinson & Lawing, L.L.P., by C. Ray Grantham, Jr. and Rebecca
H. Miller, for defendant-appellants.
BRYANT, Judge.
Tommi Steidel and Deborah Pullen (defendants) appeal from an
order entered 31 August 2006 granting Peggy Bingham's (plaintiff's)
preliminary injunction and the denial of their motions to dismiss.
Defendants also appeal the appointment of a guardian ad litem for
their father, Donald Bingham. For the reasons stated, we dismiss
the appeal as interlocutory.
Donald and Peggy Bingham were married in 1985 and have lived
as husband and wife together in the marital home since that day.
Donald's health is failing and he no longer drives. Peggy Bingham
provides care for him with daily assistance from other caretakers,
including defendants. Defendant Steidel and plaintiff werenominated in a durable power of attorney dated 22 May 2003. A
later instrument dated 28 July 2004 expressly left in place the
provisions of the 22 May 2003 document and gave (1) original power
of attorney to Donald's other daughter, who is not party to this
suit, and (2) successor power of attorney to defendants Steidel and
Pullen. All three daughters were named trustees of a revocable
trust executed on 28 July 2004 which is designed to provide income
and care for Donald. Defendants Steidel and Pullen have expressed
concern over the care received by their father and have offered to
move Donald into the home of either defendant.
On 10 August 2006, Peggy Bingham filed a complaint alleging
that her marital rights were under assault due to defendants'
desire to move Donald out of the marital home. The relief sought
in Peggy Bingham's complaint was: (1) a temporary restraining
order and preliminary injunction to keep the daughters from moving
Donald; (2) the appointment of a guardian ad litem for Donald; and
(3) a declaration of her rights under the power of attorney and the
revocable trust. On 10 August 2006 an order was issued which
“temporarily restrained [defendants] from removing Defendant
Bingham from the martial residence for any overnight visits” and
“from removing any furnishings from the marital residence.” On 17
August 2006 defendants filed pre-answer motions to dismiss for:
(1) lack of subject matter jurisdiction; (2) failure to state a
claim; and (3) improper division, motion to transfer in the
alternative to dismissal. On 21 August 2006, a hearing on the motions occurred before
the Honorable Theodore S. Royster in Davie County District Court.
The trial court entered an order granting plaintiff's preliminary
injunction, denying defendants' motions and appointing a guardian
ad litem for Donald Bingham. On 22 September 2006, defendants
filed an appeal to challenge the preliminary injunction granted on
plaintiff's behalf and the denial of defendants' motions to
dismiss.
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On appeal, defendants contest the preliminary injunction on
the grounds that the injunction prevents Donald Bingham from
choosing his own living arrangements. Defendants further allege
that the suit should be dismissed because: (1) the trial court did
not have subject matter jurisdiction to hear the complaint; (2) the
complaint did not state a claim for which relief can be granted;
and (3) the complaint was filed in the wrong division, and failing
dismissal should be transferred to superior court. Defendants also
challenge the appointment of a guardian ad litem based on lack of
notice to Donald Bingham.
We must first address whether the appeal is interlocutory.
Ordinarily, “[t]he purpose of a preliminary injunction is [] to
preserve the status quo pending trial on the merits.” State v.
School, 299 N.C. 351, 357, 261 S.E.2d 908, 913 (1980). A
preliminary injunction is an interlocutory order, therefore it can
only be appealed if it affects a substantial right. N.C. Gen.Stat. § 1-277 (2005); Harris v. Matthews, 361 N.C. 265, 269, 643
S.E.2d 566, 569 (2007); Barnes v. St. Rose Church of Christ, 160
N.C. App. 590, 591, 586 S.E.2d 548, 549 (2003).
On 10 August 2006, the trial court granted plaintiff's request
for a preliminary injunction. The order “temporarily restrained
[defendants] from removing Defendant Bingham from the marital
residence for any overnight visits” and “from removing any
furnishings from the marital residence.” Here, the trial court's
order preserved the status quo for each party until a trial on the
merits occurs. Precisely, defendants have not shown that without
immediate appellate review the preliminary injunction granted by
the trial court will deprive defendants of a substantial right. In
fact, the trial court's order allows defendants to continue caring
for and visiting their father pending litigation and a final
judgment at trial. See School, 299 N.C. at 358, 261 S.E.2d at 913
(“[T]he threshold question presented by a purported appeal from an
order granting a preliminary injunction is whether the appellant
has been deprived of any substantial right which might be lost
should the order escape appellate review before final judgment.”).
This assignment of error is dismissed.
Defendants claim their motions to dismiss for lack of subject
matter jurisdiction, failure to state a claim upon which relief may
be granted and improper division affect a substantial right and
must be considered by this Court despite their interlocutory
nature. We disagree. Motions to dismiss are also interlocutory, and do not normally
permit an appeal.
Multiple Claimants v. N.C. HHS, Div. of Facility
& Detention Servs., 176 N.C. App. 278, 282, 626 S.E.2d 666, 669
(2006) (allowing the appeal only because of the special
circumstance of a claim under the public duty doctrine).
An order denying a motion to dismiss for lack
of subject matter jurisdiction does not affect
a substantial right and is therefore not
appealable prior to final judgment. Likewise,
an order denying a motion to dismiss for
failure to state a claim upon which relief can
be granted does not affect a substantial right
and is not appealable prior to final judgment.
Byers v. North Carolina Sav. Insts. Div., 123 N.C. App. 689, 692,
474 S.E.2d 404, 407 (1996) (internal citations omitted). Based on
this settled law, we decline to review the motions to dismiss based
on subject matter jurisdiction and failure to state a claim.
Defendant contends the motion to dismiss for improper division
under N.C. Gen. Stat. § 1A-1, Rule 12(b)(3) is immediately
appealable. We disagree. While some 12(b)(3) orders may be
immediately appealable,
[o]rders transferring or refusing to transfer
. . . are not immediately appealable, even for
abuse of discretion. 'Such orders are
reviewable only by the appellate division on
appeal from a final judgment. . . . If, on
review, a new trial or partial new trial is
ordered for other reasons, the appellate
division may specify the proper division for
new trial and order a transfer thereto.'
Bryant v. Kelly, 279 N.C. 123, 131-32, 181 S.E.2d 438, 443 (1971);
see also N.C. Gen. Stat. § 7A-260 (2005). Because this matter has
not yet reached a final judgment and does not affect a substantial
right, we decline to consider the motion to dismiss based onimproper division or the alternative motion to transfer. These
assignments of error are dismissed.
III
Finally, defendants challenge the appointment of a
guardian ad
litem for Donald Bingham. However, pursuant to N.C. Gen. Stat. §
1-271, only an aggrieved party may appeal.
In re J.B., 172 N.C.
App. 1, 8, 616 S.E.2d 264, 269 (2005); N.C. Gen. Stat. § 1-271
(2005). An aggrieved party is one whose rights have been directly
and injuriously affected by the action of the trial court.
See
Culton v. Culton, 327 N.C. 624, 398 S.E.2d 323 (1990) (husband
lacked standing to appeal appointment of a guardian ad litem for
his wife in a divorce proceeding),
superseded by statute on other
grounds as stated in In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45
(2005)
. Defendants have not demonstrated how the appointment of a
guardian ad litem for Donald Bingham has affected their rights.
Accordingly, neither defendant is an aggrieved party who may appeal
such appointment. Therefore, this assignment of error is
dismissed.
Dismissed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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