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  "name": "ROBBIN LYNN TAYLOR v. MICHELLE ANN BRINKMAN and THOMAS WALTER BRINKMAN",
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    "judges": [
      "Judges WELLS and ORR concur."
    ],
    "parties": [
      "ROBBIN LYNN TAYLOR v. MICHELLE ANN BRINKMAN and THOMAS WALTER BRINKMAN"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nIn this civil action Robbin Lynn Taylor (Taylor) seeks to recover damages from Michelle Ann Brinkman (Brinkman) and her father, Thomas Walter Brinkman (Brinkman\u2019s father), for injuries sustained in an automobile accident. The trial court entered summary judgment in favor of Brinkman on the ground that the statute of limitation barred Taylor\u2019s action against Brinkman. Taylor appeals.\nThis action arose when an automobile driven by Brinkman collided with an automobile in which Taylor was a passenger on 17 May 1986. The automobile was owned by Brinkman\u2019s father. Taylor sustained serious injuries in the accident. On 16 May 1989, one day before the three-year statute of limitation would have run under N.C.G.S. \u00a7 1-52(16), Taylor was granted an order extending the time in which to file her complaint until 5 June 1989. Taylor filed a complaint against Brinkman on 5 June 1989, alleging that Brinkman was negligent in her operation of the vehicle, and against Brinkman\u2019s father, alleging that the vehicle was being operated under the family purpose doctrine and Brinkman\u2019s alleged negligence could therefore be imputed to Brinkman\u2019s father. Taylor attempted to serve both parties on 5 June 1989 by mailing copies of the complaint in separate envelopes, certified mail with return receipt requested, to Brinkman\u2019s father\u2019s address. Brinkman\u2019s father\u2019s signature appears on the receipts for both himself and his daughter. Unknown to Taylor, at the time the complaint was mailed Brinkman\u2019s father and mother were separated and Brinkman was living with her mother at another address. Brinkman had never resided at her father\u2019s address where service of process by certified mail was attempted. Upon motion by Brinkman, service of process as to her was declared invalid by Judge F. Gordon Battle on 20 August 1990 pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(5). No appeal was taken from this order.\nOn 20 September 1990, an \u201cAlias and Pluries\u201d summons was issued as to Brinkman and was served on her by certified mail, return receipt requested, in Smyrna, Georgia. Brinkman signed the return receipt on 27 September 1990. In her answer, Brinkman pleaded the affirmative defense that the action against her was barred by the three-year statute of limitation. Brinkman\u2019s motion for summary judgment was granted by Judge Henry V. Barnette, Jr. on 16 May 1991.\nThe issues presented are (I) whether the appeal must be dismissed as interlocutory; and (II) if not, whether the benefit of the sixty-day saving provision arising pursuant to N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) is limited to parties seeking a default judgment.\nI\nThe trial court\u2019s summary judgment was a final disposition of Taylor\u2019s claims against Brinkman, but Taylor\u2019s claims against Brinkman\u2019s father were not adjudicated. The trial court\u2019s summary judgment is therefore an interlocutory order because it does not determine the entire controversy between all the parties. Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950). An interlocutory order is generally not appealable. Love v. Moore, 305 N.C. 575, 578, 291 S.E.2d 141, 144 (1982). Two avenues do exist, however, whereby an interlocutory order may be appealed. Baker v. Rushing, 104 N.C. App. 240, 245, 409 S.E.2d 108, 110 (1991). First, if there has been a final disposition as to one or more but fewer than all of the claims or parties in a case, the trial judge may certify that there is no just reason to delay appeal. N.C.G.S. \u00a7 1A-1, Rule 54(b) (1990). If the judge expressly so certifies, immediate appeal is available. Brown v. Brown, 77 N.C. App. 206, 207, 334 S.E.2d 506, 507-08 (1985), disc. rev. denied, 315 N.C. 389, 338 S.E.2d 878 (1986). Here the trial court did not make a certification, so no appeal is available under Rule 54(b). Second, an interlocutory order not appealable under Rule 54(b) may nevertheless be appealed pursuant to N.C.G.S. \u00a7 1-277 and N.C.G.S. \u00a7 7A-27(d). J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5, 362 S.E.2d 812, 815 (1987). The most common reason for permitting immediate appeal of an interlocutory order under these statutes is the prejudice of a substantial right of the appellant if appeal is delayed. Davidson v. Knauff Ins. Agency, Inc., 93 N.C. App. 20, 24, 376 S.E.2d 488, 490, disc. rev. denied, 324 N.C. 577, 381 S.E.2d 772 (1989).\nOur Supreme Court has held that the right to avoid the possibility of two trials on the same issues is a substantial right that may support immediate appeal under N.C.G.S. \u00a7 1-277 and N.C.G.S. \u00a7 7A-27(d). Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982). In the instant case, Brinkman\u2019s negligence is a fundamental issue in both Taylor\u2019s claim against Brinkman and her imputed negligence claim against Brinkman\u2019s father. Identical factual issues are present in both claims. If summary judgment for Brinkman stands, Taylor\u2019s only remaining claim is against Brinkman\u2019s father. Taylor must seek to prove Brinkman\u2019s negligence in her case against Brinkman\u2019s father. If, at a later time, summary judgment in favor of Brinkman is reversed, Taylor must again seek to prove Brinkman\u2019s negligence in her action against Brinkman. Because our dismissal of this appeal could result in two different trials on the same issues, thereby creating the possibility of inconsistent verdicts, a substantial right is prejudiced and the summary judgment is immediately appealable.\nII\nThe parties do not dispute that the \u201cAlias and Pluries\u201d summons issued along with the complaint on 20 September 1990 was timely served on Brinkman by certified mail on 27 September 1990. It is also not disputed that because the issuance of the \u201cAlias and Pluries\u201d summons did not occur within ninety days after the issuance of the first summons, the action was deemed filed on the date of the \u201cAlias and Pluries\u201d summons. See Long v. Fink, 80 N.C. App. 482, 485, 342 S.E.2d 557, 559-60 (1986). Furthermore, because this action accrued on 17 May 1986, its filing in September, 1990 is outside the applicable three-year statute of limitation. Nonetheless, Taylor argues that because the action was initially commenced on 16 May 1989, which was within the period of limitation, and because proper service was had on Brinkman \u201cwithin 60 days from the date the service [on Brinkman was] declared invalid\u201d by Judge Battle, N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) precludes Brinkman from pleading the statute of limitation. N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) (1990). We disagree.\nWith two exceptions, service of process attempted by registered or certified mail, as permitted by N.C.G.S. \u00a7 1A-1, Rule 4(j)(l)(c), is \u201ccomplete on the day the summons and complaint are delivered to the address thereon.\u201d Lynch v. Lynch, 303 N.C. 367, 370, 279 S.E.2d 840, 843 (1981). The two exceptions occur when the plaintiff seeks a judgment by default and when the defendant appears in the action and challenges the service. Lynch, 303 N.C. at 370, 279 S.E.2d at 843. In these two situations, the plaintiff is required to show proof of service by filing with the court an affidavit consistent with N.C.G.S. \u00a7 1-75.10(4). Id.; N.C.G.S. \u00a7 1-75.11 (1990); N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) (1990). The filing of an affidavit consistent with N.C.G.S. \u00a7 1-75.10(4) raises a rebuttable presumption of valid service consistent with N.C.G.S. \u00a7 1A-1, Rule 4(j)(l)(c). Lewis Clarke Assocs. v. Tobler, 32 N.C. App. 435, 438, 232 S.E.2d 458, 459, disc. rev. denied, 292 N.C. 641, 235 S.E.2d 60 (1977); N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) (1990). If the plaintiff, in seeking judgment by default, presents an affidavit giving rise to the presumption of valid service and this presumption is later rebutted, \u201cthe statute of limitation may not be pleaded as a defense if the action was initially commenced within the period of limitation and service of process is completed within 60 days from the date the service is declared invalid.\u201d N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) (1990); W. Brian Howell, Howell\u2019s Shuford North Carolina Civil Practice and Procedure \u00a7 4-12 (4th ed. 1992).\nBecause Taylor was not seeking the imposition of a judgment by default, the sixty-day saving provision of Rule 4(j2)(2) was not applicable. Therefore, Taylor\u2019s complaint was filed outside the statute of limitation and was correctly dismissed by Judge Barnette by summary judgment.\nAffirmed.\nJudges WELLS and ORR concur.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
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    "attorneys": [
      "Clayton, Myrick, McClanahan & Coulter, by Robert D. McClanahan and Gregory L. Hughes, for plaintiff-appellant.",
      "Haywood, Denny, Miller, Johnson, Sessoms & Patrick, by James H. Johnson, III and Andrew T. Landauer, for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "ROBBIN LYNN TAYLOR v. MICHELLE ANN BRINKMAN and THOMAS WALTER BRINKMAN\nNo. 9114SC921\n(Filed 2 February 1993)\n1. Appeal and Error \u00a7 119 (NCI4th)\u2014 summary judgment granted \u2014 not a final disposition of all claims \u2014 substantial right prejudiced\nThe granting of a summary judgment motion which was not a final disposition of all claims in an automobile collision was immediately appealable where defendant Brinkman\u2019s negligence was a fundamental issue in plaintiff Taylor\u2019s claim against Brinkman and her imputed negligence claim against Brinkman\u2019s father. Taylor must seek to prove Brinkman\u2019s negligence in her case against Brinkman\u2019s father and, if summary judgment against Brinkman is later reversed, could again have to prove Brinkman\u2019s negligence in her action against Brinkman. A substantial right would be prejudiced because dismissal of this appeal could result in two trials on the same issues and create the possibility of inconsistent verdicts.\nAm Jur 2d, Appeal and Error \u00a7 104.\n2. Rules of Civil Procedure \u00a7 4 (NCI3d)\u2014 service of process\u2014 Rule 4(j2)(2) \u2014 default judgment not sought \u2014 60 day saving provision not applicable\nA complaint arising from an automobile accident was filed outside the statute of limitations and was correctly dismissed where an order extending the time to file was granted one day before the three year statute of limitations would have run; the complaint, filed on the last day of the extension, was against Brinkman and Brinkman\u2019s father; plaintiff attempted to serve both parties by sending copies of the complaint in separate envelopes by certified mail, return receipt requested, to Brinkman\u2019s father\u2019s address; Brinkman\u2019s father\u2019s signature appears on both receipts; plaintiff did not know that Brinkman\u2019s father and mother were separated at the time; Brinkman was living with her mother at another address and had never lived at the address where service was attempted; service upon her was declared invalid; an alias and pluries summons was served on her by certified mail in Georgia; her answer raised the statute of limitations; and summary judgment was granted for her. The sixty day saving provision of N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2) was not applicable because plaintiff was not seeking the imposition of a judgment by default.\nAm Jur 2d, Process \u00a7\u00a7 117, 227.\nAppeal by plaintiff from judgment entered 16 May 1991 in Durham County Superior Court by Judge Henry V. Barnette, Jr. Heard in the Court of Appeals 23 September 1992.\nClayton, Myrick, McClanahan & Coulter, by Robert D. McClanahan and Gregory L. Hughes, for plaintiff-appellant.\nHaywood, Denny, Miller, Johnson, Sessoms & Patrick, by James H. Johnson, III and Andrew T. Landauer, for defendant-appellees."
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