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Dixon v. Hill11/1/2005
al to the North Carolina Court of Appeals from a final judgment entered on September 15, 2003 by the Honorable Gary Locklear granting Summary Judgment in favor of Plaintiff ." The notice of appeal thus does not specifically appeal the order allowing substitution. Proper notice of appeal requires that the appealing party "designate the judgment or order from which appeal is taken and the court to which appeal is taken . . . ." N.C.R. App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). N.C. Gen. Stat. § 1-278 (2003), however, provides a means by which an appellate court may obtain jurisdiction to review an order not included in a notice on appeal. It states: "Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment." Id.
This Court has held that appellate review pursuant to N.C. Gen. Stat. § 1-278 is proper under the following circumstances: (1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000), appeal dismissed and disc. review denied, 353 N.C. 370, 547 S.E.2d 1-2 (2001). All three conditions must be met. Id. at 642, 535 S.E.2d at 59.
In this case, defendants have failed to meet the first requirement. Nothing in the record establishes that either defendant timely objected to the order of substitution. Rule 46(b) of the Rules of Civil Procedure provides, as to interlocutory orders not directed to the admissibility of evidence, that "formal objections and exceptions are unnecessary." Instead, n order to preserve an exception to any such ruling or order or to the court's failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position.
Id. The opposition must specify "what action [the non-movant] wanted the trial court to take and the grounds for that action." Inman v. Inman, 136 N.C. App. 707, 712, 525 S.E.2d 820, 823, cert. denied, 351 N.C. 641, 543 S.E.2d 870 (2000).
In this case, the record contains no written opposition to the motion to substitute. In addition, as defendants did not file with this Court a transcript of the 15 September 2003 hearing, there is no indication that defendants made any oral objections to the motion to substitute. Accordingly, because defendants did not specifically reference the order of substitution in the notice of appeal and because the record contains no indication that defendants objected to the entry of that order, we do not have jurisdiction to review defendants' contentions regarding the order of substitution.
Appeal of the Summary Judgment Order by Hill
We agree, however, with defendant Hill that he did not receive proper notice of the motion for summary judgment. The order of substitution making Hill a party to this action in his capacity as administrator of Barber's estate was entered on 15 September 2003, the same day that the court entered summary judgment against defendant Hill. In other words, Barber's estate became liable toplaintiffs on the very same day that it became a party to the lawsuit.
N.C.R. Civ. P. 56(a), governing summary judgment proceedings, provides: "A party seeking to recover upon a claim . . . may, at any time
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