{
  "id": 11361894,
  "name": "COREEN ANGLIN-STONE and EDWIN STONE, Plaintiffs v. SCOTT CURTIS, Defendant",
  "name_abbreviation": "Anglin-Stone v. Curtis",
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          "parenthetical": "An order allowing a motion under Rule 60(b) is not appealable because it is interlocutory and does not affect a substantial right."
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  "last_updated": "2023-07-14T17:14:58.205856+00:00",
  "provenance": {
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  "casebody": {
    "judges": [
      "Judges HUNTER and TYSON concur."
    ],
    "parties": [
      "COREEN ANGLIN-STONE and EDWIN STONE, Plaintiffs v. SCOTT CURTIS, Defendant"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nDefendant argues on appeal that the trial court erred in finding under Rule 60(b) that plaintiff had obtained sufficient service of process over him. However for controlling reasons set forth in Metcalf v. Palmer, 46 N.C. App. 622, 265 S.E.2d 484 (1980) and Berger v. Berger, 67 N.C. App. 591, 313 S.E.2d 825 (1984), we must dismiss this appeal as interlocutory.\nPlaintiff brought this automobile negligence action against \u201cScott Curtis\u201d; in fact, defendant\u2019s name is \u201cCurtis Scott.\u201d Apparently, the confusion in inverting defendant\u2019s name originated with the accident report which on one page identified defendant as \u201cScott Jerome Curtis\u201d but on the second page identified him as \u201cCurtis Jerome Scott.\u201d\nInitially, the trial court granted defendant\u2019s motion to dismiss this action under Rule 12(b)(2)(4) and (5), finding that \u201cthere was no evidence of proper service on Curtis Jerome Scott\u201d and that \u201c[t]he statute of limitations of this matter is expired.\u201d Subsequently, the trial court granted plaintiff relief from that dismissal under Rule 60(b) finding that (1) \u201cScott Curtis\u201d was a misnomer that did not invalidate either the Complaint or Summons and (2) correcting the name to \u201cCurtis Jerome Scott\u201d does not constitute another party. The trial court concluded that \u201camending the Summons and Complaint to correct the misnomers contained therein relates back to the date original Summons and Complaint were filed.\u201d Thereafter, the trial court certified this matter for review under Rule 54(b), and defendant brought this appeal.\nPreliminarily, it should be noted that \u201cRule 54(b) of the Rules of Civil Procedure allows appeal if the specific action of the trial court from which appeal is taken is final and the trial judge expressly determines that there is no just reason to delay appeal.\u201d Cagle v. Teachy, 111 N.C. App. 244, 246, 431 S.E.2d 801, 803 (1993) (emphasis omitted). \u201c[A] trial judge by denominating his decree a final judgment cannot make it immediately appealable under Rule 54(b) if it is not such a judgment.\u201d Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). See also Morris Commun. Corp. v. City of Asheville, 145 N.C. App. 597, - S.E.2d - (August 21, 2001). In Metcalf v. Palmer, supra, this Court dismissed a defendant\u2019s attempt to appeal from a granted Rule 60(b)(1) motion holding that:\nThe order appealed from is interlocutory. It does not affect any substantial right of defendants which cannot be protected by timely appeal from the trial court\u2019s ultimate disposition of the entire controversy on the merits. Its only effect is to require defendants to face a trial on the merits ....\n46 N.C. App. at 624, 265 S.E.2d 484. Accord Bailey v. Gooding, 301 N.C. 205, 270 S.E.2d 431 (1980) (An order allowing a motion under Rule 60(b) is not appealable because it is interlocutory and does not affect a substantial right.); Blackwelder v. Dept. of Hum. Res., 60 N.C. App. 331, 333, 299 S.E.2d 777, 779 (1983) (An appeal is interlocutory \u201cif it does not determine the issues but directs some further proceeding preliminary to final decree.\u201d).\nMoreover, in determining the appealability of a personal jurisdiction issue, this Court in Berger v. Berger, supra, held that:\n[i]f defendant\u2019s motion raises a due process question of whether his contacts within the forum state were sufficient to justify the court\u2019s jurisdictional power over him, then the order denying such a motion is immediately appealable under G.S. 1-277(b). If, on the other hand, defendant\u2019s motion, though couched in terms of lack of jurisdiction under Rule 12(b)(2), actually raises a question of sufficiency of service or process, the order denying such motion is interlocutory and does not fall within the ambit of G.S. l-277(b).\n67 N.C. App. at 595, 313 S.E.2d at 828-29.\nIn the present case, defendant does not question whether his contacts with North Carolina were sufficient to justify the court\u2019s jurisdictional powers over him. Rather, the underlying basis of defendant\u2019s argument concerns whether there was proper or sufficient service over him.\nSince Berger prohibits such appeals as interlocutory and certification of the case under Rule 54(b) does not make it a final judgment, we dismiss this appeal as premature.\nAppeal dismissed.\nJudges HUNTER and TYSON concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Patterson, Dilthey, Clay & Bryson, L.L.P., by G. Lawrence Reeves, Jr., and Currie, Becton & Stewart, by Elwood Becton for plaintiff-appellees.",
      "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Steven M. Sartorio and Christopher G. Smith for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "COREEN ANGLIN-STONE and EDWIN STONE, Plaintiffs v. SCOTT CURTIS, Defendant\nNo. COA-00-1211\n(Filed 16 October 2001)\nAppeal and Error\u2014 appealability \u2014 sufficiency of service of process \u2014 interlocutory order\nDefendant\u2019s appeal from the trial court\u2019s order finding under N.C.G.S. \u00a7 1A-1, Rule 60(b) that plaintiff had obtained sufficient service of process over defendant in an automobile negligence action is dismissed as interlocutory even though the trial court certified the appeal under N.C.G.S. \u00a7 1A-1, Rule 54(b), because: (1) a trial judge cannot denominate his decree as a final judgment and make it immediately appealable under Rule 54(b) if it is not such a judgment; and (2) a motion raising a question of sufficiency of service or process is interlocutory and does not fall within N.C.G.S. \u00a7 l-277(b)'.\nAppeal by defendant from order entered 14 July 2000 by Judge Henry V. Barnette, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 12 September 2001.\nPatterson, Dilthey, Clay & Bryson, L.L.P., by G. Lawrence Reeves, Jr., and Currie, Becton & Stewart, by Elwood Becton for plaintiff-appellees.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Steven M. Sartorio and Christopher G. Smith for defendant-appellant."
  },
  "file_name": "0608-01",
  "first_page_order": 640,
  "last_page_order": 643
}