 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Sweeney v. Penn8/6/2002
UNPUBLISHED
A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).
Plaintiffs initiated this personal injury action against defendant in Mecklenburg County Superior Court on 21 December 2000. Plaintiffs sought damages for personal injuries and loss of consortium, arising out of a three-car automobile accident, which occurred on U.S. Highway 1 in Rockingham, North Carolina. At the time of the accident and the filing of the complaint, plaintiffs were residents of Spring Hill, Florida. At the time of service, defendant was residing in Sumter, South Carolina. Neitherplaintiffs nor defendant has ever been a resident of North Carolina.
On 22 June 2001, defendant filed a "Motion to Dismiss, Motion to Change Venue, Answer of Defendant Drewry H. Penn, and Counterclaim for Contribution." Defendant argued that plaintiff's complaint should be stricken as it was unverified and filed by a person who was not licensed to practice law in this State. Defendant also argued that the action should be dismissed because the statute of limitations and repose would act as a complete bar to plaintiffs' claims. Defendant further argued that the complaint should be dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(1)-(6)(2001). On 30 July 2001, plaintiffs voluntarily dismissed (without prejudice) the claims of Michael A. Scinta. At the same time, plaintiffs moved to amend their complaint to add the signature of an attorney who was licensed to practice law in this State. The various motions of plaintiffs and defendant were heard in the trial court on 4 September 2001. After hearing the arguments of counsel and considering briefs and other evidence, the trial court denied defendant's motion to change venue, motion to strike, and his motions to dismiss pursuant to Rule 12(b)(1)-(6). The trial court allowed plaintiffs' motion to amend their complaint.
On appeal, defendant specifically assigns error to the trial court's denial of his Rule 12(f) motion to strike and his Rule 12(b)(4),(5) and (6) motions to dismiss. However, defendant failed to assign as error or present any meaningful argument as to thedenial of his Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction.
As defendant recognizes, the order from which he appeals is interlocutory. Generally, there is no right to immediate appellate review of an interlocutory order. Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998). However, a party may be entitled to immediate appeal pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27(d) or N.C. Gen. Stat. § 1A-1, Rule 54(b). Id.
It is well settled that the denial of a Rule 12(f) motion to strike and Rule 12(b)(4), (5) and (6) motions to dismiss does not affect a substantial right; therefore, it is not immediately appealable. See Raines v. Thompson, 62 N.C. App. 752, 753, 303 S.E.2d 413, 414 (1983)(Rule 12(f) motion to strike); Seabrooke v. Hagin, 83 N.C. App. 60, 60, 348 S.E.2d 614, 615 (1986)(Rules 12(b)(4) and 12(b)(5) motions to dismiss); Berger v. Berger, 67 N.C. App. 591, 595, 313 S.E.2d 825, 828, disc. rev. denied, 311 N.C. 303, 317 S.E.2d 678 (1984)(Rule 12(b)(6)motion to dismiss). Our appellate courts have found, however, that an adverse ruling as to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, which "raises a due process question of whether his contacts within the forum state were sufficient to justify the court's juris
Page 1 2 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|