Premiere Auto, L.L.C. v. Wachovia Bank, N.A
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-328 NORTH CAROLINA COURT OF APPEALS Filed: 17 September 2013 PREMIERE AUTO, L.L.C, a North Carolina Limited Liability Company, and EDWARD STEVENS HOWIE, III, an individual, Plaintiffs, v. Cumberland County No. 11 CVS 6838 WACHOVIA BANK, N.A., a National Association, LARRY MICHAEL WRIGHT, an individual, and LARRY MICHAEL WRIGHT, II, an individual, Defendants. Appeal by defendant from order entered 30 April 2012 by Judge Lucy N. Inman in Cumberland County Superior Court. Heard in the Court of Appeals 26 August 2013. No Appellee s Brief Filed. The Gilliam defendant. Law Firm, by J. Duane Gilliam, Jr., for Elmore, Judge. Despite the above named defendants in this action, Larry Michael Wright, II (defendant) appeals in an individual capacity from an order entered 30 April 2012 denying his motion to -2dismiss. After careful consideration, we dismiss defendant s appeal as interlocutory. I. Background Premiere Auto, (plaintiffs) filed damages L.L.C. unfair for this and and action Edward Stevens against deceptive trade Howie, defendant III pursuing practices, fraud, conversion, civil conspiracy, unjust enrichment, and punitive damages. Defendant moved to dismiss the action for lack of personal jurisdiction pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2) and for insufficiency of service of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(5). In his motion, defendant contended that the trial court lacked personal jurisdiction over him because he was not served with process in accordance with the law since service ha[d] not been perfected pursuant to Rule 4 of the North Carolina Rules of Civil Procedure. The trial court found no Rule 4 violation because (1) defendant was served with a copy of the complaint and summons in this action; (2) service by a private process server was proper; and (3) an affidavit of service was filed with Cumberland County s Clerk of Superior Court. Thus, the trial court concluded that it -3maintained personal jurisdiction over defendant. Defendant entered notice of appeal on 4 May 2012. II. Analysis Defendant argues that the trial court erred in denying his motion to dismiss for lack of personal jurisdiction based on insufficient service of process. For the reasons subsequently set forth, we have no authority to hear defendant s appeal on the merits. Generally, there is no right of interlocutory orders and judgments. immediate appeal from Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, immediate appeal is available from an interlocutory order or judgment which affects a substantial right. Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (citations and quotations omitted). Ordinarily an order denying a motion to dismiss pursuant to G.S. § 1A-1, Rule 12(b) is considered interlocutory and not affecting a substantial right, and consequently right of immediate appeal therefrom. there is no Hart v. F.N. Thompson Constr. Co., 132 N.C. App. 229, 230-31, 511 S.E.2d 27, 28 (1999) -4(citation omitted). However, [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[.] is limited N.C. Gen. Stat. § 1-277(b) (2011). to rulings on minimum subject matter of Rule 12(b)(2). contacts This right questions, the Love v. Moore, 305 N.C. 575, 581, 291 S.E.2d 141, 146 (1982) (quotations omitted). Thus, the jurisdictional argument must be substantive rather than merely procedural. Hart, 132 N.C. App. at 231, 511 S.E.2d at 28. Here, defendant avers that the trial court lacked personal jurisdiction over him solely because of a procedural defect in service of process. Because defendant s jurisdictional argument is not based on grounds of inadequate minimum contacts, it must be dismissed. See id. (dismissing an appeal where defendant alleged lack of personal jurisdiction grounded in service of process issues but not insufficient minimum contacts). Accordingly, we have no authority to hear defendant s appeal; we dismiss it as interlocutory. Appeal Dismissed. Chief Judge MARTIN and HUNTER, JR., Robert N., concur. Report per Rule 30(e).
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