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  "name": "DANA D. WEBB, Plaintiff v. DOUGLAS H. PRICE, II and NEW HANOVER COUNTY SHERIFF'S DEPARTMENT, Defendants",
  "name_abbreviation": "Webb v. Price",
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    {
      "cite": "N.C. Gen. Stat. \u00a7 162-16",
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    "judges": [
      "Chief Judge MARTIN and Judge ERVIN concur."
    ],
    "parties": [
      "DANA D. WEBB, Plaintiff v. DOUGLAS H. PRICE, II and NEW HANOVER COUNTY SHERIFF\u2019S DEPARTMENT, Defendants"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nDefendant Douglas H. Price, II appeals the trial court\u2019s denial of his motion to dismiss. Because N.C. Gen. Stat. \u00a7 162-16 governs only a method of personal service of process upon a sheriff and does not establish the sole method of service of process upon a sheriff, N.C. Gen. Stat. \u00a7 162-16 is not applicable to service in this case, so defendant\u2019s appeal is interlocutory. We therefore dismiss the appeal.\nI. Background\nOn 30 December 2008, plaintiff filed a complaint alleging negligence on the part of defendants. The summons issued on 30 December 2008 expired, but an alias and pluries summons was issued on 9 April 2009, and on 29 May 2009, defendant Price was served with the summons and complaint. On 24 June 2009, plaintiff filed an amended complaint. On 12 February 2009, defendant Price\nmove[d] the Court pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5) and 12(b)(6) of the North Carolina Rules of Civil Procedure to dismiss the Complaint for lack of personal jurisdiction, insufficiency of process, insufficiency of service of process, and the failure to state a claim upon which relief can be granted. In support of this motion, Defendant shows the Court that he has not been properly served with Summons or Complaint. Further, the plaintiffs claims are barred by the doctrines of governmental and sovereign immunity.\nOn or about 2 December 2009, the trial court denied defendant Price\u2019s motion to dismiss. Defendant Price appeals.\nII. Interlocutory Appeal\nPlaintiff filed a motion to dismiss defendant Price\u2019s appeal as interlocutory, and defendant Price concedes that his appeal is interlocutory but argues that we should hear his appeal because the trial court\u2019s order \u201cdeprives Deputy Price of his substantial right to be immune from suit due to plaintiff\u2019s failure to comply with the statutory method of invoking personal jurisdiction over sheriffs[.]\u201d\nOrdinarily an order denying a motion to dismiss pursuant to G.S. \u00a7 1A-1, Rule 12(b) is considered interlocutory and not affecting a substantial right, and consequently there is no right of immediate appeal therefrom. However, an immediate right to appeal from an order denying a motion to dismiss exists pursuant to G.S. \u00a7 l-277(b) which provides that any 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 or such party may preserve his exception for determination upon any subsequent appeal in the cause. This Court has interpreted G.S. \u00a7 l-277(b) as allowing an immediate right of appeal only when the jurisdictional challenge is substantive rather than merely procedural. In Berger v. Berger, supra, we held that: While G.S. l-277(b) appears to authorize such right, it is our duty on appeal to examine the underlying nature of defendant\u2019s motion: If 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 motion is immediately appealable under G.S. l-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, then the order denying such motion is interlocutory and does not fall within the ambit of G.S. l-277(b).\nHart v. F.N. Thompson Const. Co., 132 N.C. App. 229, 230-31, 511 S.E.2d 27, 28 (1999) (citation, quotation marks, and brackets omitted). Furthermore, \u201cthis Court has repeatedly held that appeals raising issues of governmental or sovereign immunity affect a substantial right sufficient to warrant immediate appellate review.\u201d Price v. Davis, 132 N.C. App. 556, 558-59, 512 S.E.2d 783, 785 (1999).\nHere, defendant Price argues that the trial court lacked personal jurisdiction and that this jurisdictional issue \u201cis substantive rather than merely procedural.\u201d Hart at 230-31, 511 S.E.2d at 28. Defendant Price\u2019s argument is based on the lack of service of the summons and complaint as required by N.C. Gen. Stat. \u00a7 162-16, which provides that \u201cif the sheriff be a party, the coroner shall be bound to perform the service, as he is now bound to execute process where the sheriff is a party; and this Chapter relating to sheriffs shall apply to coroners when the sheriff is a party.\u201d N.C. Gen. Stat. \u00a7 162-16 (2009). Defendant Price contends that\n[w]ith the enactment of N.C. Gen. Stat. \u00a7 162-16, the North Carolina legislature created the sole means by which a Sheriff and their [sic] deputies can be served with legal process and be subject to the personal jurisdiction of the Courts. This statutory requirement preempts any provision of the N.C. Rules of Civil Procedure allowing for methods of substitute service.\nDefendant claims that N.C. Gen. Stat. \u00a7 162-16 is a \u201cstatutory requirement\u201d which \u201caffects a substantial right . . . which would be lost if litigants are allowed to proceed with litigation against Sheriffs and their deputies in the absence of following the clearly established statutory method of subjecting such persons to the jurisdiction of the Court.\u201d\nHowever, even if we assume arguendo that non-compliance with N.C. Gen. Stat. \u00a7 162-16 affects a substantial right and is not merely procedural, defendant has not demonstrated that this statute was applicable to service in this case. Defendant was not personally served with the summons and complaint; he was served by certified mail pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4. N.C. Gen. Stat. \u00a7 162-16 does not provide the only way of serving a sheriff or deputy. See N.C. Gen. Stat. \u00a7 1A-1, Rule 4. Instead, N.C. Gen. Stat. \u00a7 162-16 provides the method of service when personal service is needed, as the sheriff or deputy obviously could not effect personal service upon himself. Defendant argues that Mabee v. Onslow Cty. Sheriff\u2019s Dep\u2019t requires that service upon a sheriff or deputy be performed by the coroner under N.C. Gen. Stat. \u00a7 162-16. 174 N.C. App. 210, 620 S.E.2d 307 (2005), disc, review denied, 360 N.C. 364, 629 S.E.2d 854 (2006). However, in Mabee, personal service was used, not service by certified mail. Id.\nAlthough our current version of N.C. Gen. Stat. \u00a7 162-16 was adopted in 1971, a prior version of the statute which was substantially the same dates back at least as far as the late 1800s. See State v. Baird, 118 N.C. 854, 862, 24 S.E. 668, 670 (1896). Despite over one hundred years of this law\u2019s existence, we have been unable to find any case holding that N.C. Gen. Stat. \u00a7 162-16 creates the sole method of service upon a sheriff or deputy, although it does establish the sole method of personal service. See Mabee, 174 N.C. App. 210, 620 S.E.2d 307. Defendant cites no authority, and we find none, establishing that N.C. Gen. Stat. \u00a7 162-16 replaces the requirements of N.C. Gen. Stat. \u00a7 LA-1, Rule 4 as to methods of service other than personal service, including certified mail as was used in this case. Thus, N.C. Gen. Stat. \u00a7 162-16 is not applicable to defendant Price and any objections that he may raise as to erroneous service based on non-compliance with this statutory provision are \u201cmerely procedural[,]\u201d so his appeal is interlocutory and must be dismissed. Hart at 230-31, 511 S.E.2d at 28; see Cook v. Cinocca, 122 N.C. App. 642, 644, 471 S.E.2d 108, 109 (1996) (\u201cDefendant\u2019s appeal here pertains merely to the process of service used to bring the party before the court[.] Accordingly, we dismiss defendant\u2019s appeal ex mero motu as interlocutory.\u201d (citation, quotation marks, and ellipses omitted)).\nDefendant Price also raises an issue regarding the statute of limitations and argues that he was entitled to dismissal based upon \u201cRule 12(b)(6) because the statute of limitations had run before Deputy Price was served.\u201d However, \u201cour Supreme Court has previously determined that a motion to dismiss based on a statute of limitations does not affect a substantial right and is therefore not [immediately] appealable.\u201d Lee v. Baxter, 147 N.C. App. 517, 520, 556 S.E.2d 36, 38 (2001) (citation, quotation marks, and brackets omitted)). Accordingly, we grant plaintiff\u2019s motion to dismiss and dismiss defendant Price\u2019s appeal as interlocutory.\nDISMISSED.\nChief Judge MARTIN and Judge ERVIN concur.\n. Although defendant Price\u2019s brief asserts that the \u201cNew Hanover County Sheriff\u2019s Department was dismissed as a party prior to this appeal[,]\u201d our record does not include any documentation as to this dismissal.\n. Plaintiff also requested that we sanction defendant Price pursuant to Rule 34 of the North Carolina Rules of Appellate Procedure for filing a frivolous appeal; however, as we are dismissing this appeal, in our discretion we will not sanction defendant Price.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Fox Law, P.A., by Angela Bullard Fox, and David & Associates, by D. Stuart Smith, for plaintiff-appellee.",
      "Teague, Campbell, Dennis & Gorham, L.L.P., by Christopher G. Lewis and Natalia K. Isenberg, for defendant-appellant Douglas H. Price, II."
    ],
    "corrections": "",
    "head_matter": "DANA D. WEBB, Plaintiff v. DOUGLAS H. PRICE, II and NEW HANOVER COUNTY SHERIFF\u2019S DEPARTMENT, Defendants\nNo. COA10-284\n(Filed 1 March 2011)\nAppeal and Error\u2014 interlocutory appeals \u2014 orders and statues not applicable \u2014 no substantial right affected\nDefendant\u2019s appeal from the trial court\u2019s denial of his motion to dismiss plaintiff\u2019s negligence complaint was dismissed. Because N.C.G.S. \u00a7 162-16 governs only a method of personal service of process upon a sheriff and does not establish the sole method of service of process upon a sheriff, N.C.G.S. \u00a7 162-16 was not applicable to service in this case, so defendant\u2019s appeal was from an interlocutory order. Furthermore, defendant\u2019s motion to dismiss based on a statute of limitations did not affect a substantial right and was therefore not immediately appealable.\nAppeal by defendant Douglas H. Price, II from order entered on or about 2 December 2009 by Judge W. Allen Cobb, Jr. in Superior Court, New Hanover County. Heard in the Court of Appeals 13 September 2010.\nFox Law, P.A., by Angela Bullard Fox, and David & Associates, by D. Stuart Smith, for plaintiff-appellee.\nTeague, Campbell, Dennis & Gorham, L.L.P., by Christopher G. Lewis and Natalia K. Isenberg, for defendant-appellant Douglas H. Price, II."
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  "file_name": "0261-01",
  "first_page_order": 269,
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