#### GARY WRIGHT and SHIRLEY M. WRIGHT v. ASHEVILLE POOL AND GUNITE COMPANY d/b/a ASHEVILLE SOLAR SYSTEMS

No. 7828DC1150

(Filed 20 November 1979)

APPEAL by plaintiffs from Styles, Judge. Judgment entered 25 July 1978 in District Court, BUNCOMBE County. Heard in the Court of Appeals 19 September 1979.

Jones and Parker, by Lawrence T. Jones, for plaintiff appellants.

Shuford, Frue & Best, by Ronald K. Payne, for defendant ap-pellee.

VAUGHN, Judge.

The appeal is subject to dismissal for failure to comply with the Rules of Appellate Procedure. Appellants failed to comply with Rule 9(b)(l)(ix) which requires that the record on appeal shall contain “a copy of the notice of appeal, or of the appeal entry showing appeal taken orally, and of all other appeal entries relative to the perfecting of appeal.” We have, nevertheless, elected to consider the case on its merits.

On 25 July 1978, the trial judge granted defendant’s motion for directed verdict made at the close of plaintiffs’ evidence. *81Plaintiffs do not bring forward the evidence and make no complaint about the judgment dismissing the action. The only exceptions brought forward relate to the denial of their pretrial motions for summary judgment. The exceptions fail to disclose prejudicial error. “Denial of a motion for summary judgment does not determine the merits of the case. It merely means that the case proceeds to trial.” Oil Co. v. Smith, 34 N.C. App. 324, 325, 237 S.E. 2d 882, 883 (1977).

There are no assignments of error directed to any part of the trial which resulted in judgment against the appellants. The judgment is affirmed.

Affirmed.

Judges ERWIN and HILL concur.