Howard v. Ocean Trail Convalescent Center

315 S.E.2d 97, 68 N.C. App. 494, 1984 N.C. App. LEXIS 3320

Opinion

EAGLES, Judge.

Defendants Evans, Johnson Controls, and Tucker each assign as error the trial court’s denial of their motions to dismiss. We hold that the court’s order denying defendant’s motions to dismiss was interlocutory, does not affect a substantial right, and is therefore not appealable. Denial of a motion to dismiss is interlocutory because it simply allows an action to proceed and will not seriously impair any right of defendants that cannot be corrected upon appeal from final judgment. Godley Auction Co., Inc. v. Myers, 40 N.C. App. 570, 253 S.E. 2d 362 (1979). The avoidance of a trial is not a “substantial right” that would make such an interlocutory order appealable under G.S. 1-277 or G.S. 7A-27(d). Davis v. Mitchell, 46 N.C. App. 272, 265 S.E. 2d 248 (1980).

Denial of defendant Tucker’s motion to quash service of the amended complaint was also interlocutory, does not affect a substantial right, and is not immediately appealable. Our Supreme Court has held that the G.S. l-277(b) provision for “immediate appeal from an adverse ruling as to the jurisdiction of the court over the person or property of defendant” applies to the state’s authority to bring a defendant before its courts (“minimum contacts” considerations), not to challenges of sufficiency of process and service. Love v. Moore, 305 N.C. 575, 291 S.E. 2d 141 (1982).

Defendants assign as error the order allowing plaintiff to amend the complaint to realign the parties, and this assignment of error is also premature and not appealable. The order granting the motion to amend is obviously not a final judgment but is interlocutory. Funderburk v. Justice, 25 N.C. App. 655, 214 S.E. 2d 310 (1975). No “substantial right” is at stake, so there is no right to immediate appeal on this issue.

For the reasons given above, this appeal is

Dismissed.

Judges Webb and Becton concur.