O'Neill v. Southern Nat. Bank, 7826SC269

• Decision Date: 06 March 1979
• Docket Number: No. 7826SC269,7826SC269
• Citation: 40 N.C.App. 227,252 S.E.2d 231
• Parties: James F. O'NEILL, Guardian ad Litem for Michael Raymond Harris, David Lee Harris, Beverly Ann Harris, and Barbara Lynn Harris, Minors, Virginia Louise Harris and Calvin J. Harris, Jr. v. SOUTHERN NATIONAL BANK of North Carolina, Wheat First Securities, Inc., and James R. Sheilds.
• Court: North Carolina Court of Appeals

Page 231

252 S.E.2d 231

40 N.C.App. 227

James F. O'NEILL, Guardian ad Litem for Michael Raymond Harris, David Lee Harris, Beverly Ann Harris, and Barbara Lynn Harris, Minors, Virginia Louise Harris and Calvin J. Harris, Jr. v. SOUTHERN NATIONAL BANK of North Carolina, Wheat First Securities, Inc., and James R. Sheilds.

No. 7826SC269.

Court of Appeals of North Carolina.

March 6, 1979.

Mraz, Aycock, Casstevens & Davis, by John A. Mraz, Charlotte, for plaintiff appellees.

Fleming, Robinson & Bradshaw, by Michael A. Almond, Charlotte, for defendant appellant Southern National Bank.

HEDRICK, Judge.

We first consider the Bank's purported appeal based on an exception to the 4 January 1978 Order denying the Bank's Rule 12(b)(6) motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted. An Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable. G.S. § 1-277; Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); North Carolina Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 206 S.E.2d 178 (1974); Acorn v. Jones Knitting Corp., 12 N.C.App. 266, 182 S.E.2d 862 (1971). Furthermore, the record discloses that the defendant did not give notice of appeal from the Order entered 4 January 1978 within ten days as required by G.S. § 1-279(c) and Rule 3(c) of the Rules of Appellate Procedure. The provisions of G.S. § 1-279 are jurisdictional, and unless they are complied with the appellate court acquires no jurisdiction of an appeal and must dismiss it. Teague v. Teague, 266 N.C. 320, 146 S.E.2d 87 (1966); Giannitrapani v. Duke University, 30 N.C.App. 667, 228 S.E.2d 46 (1976); Brooks v. Matthews, 29 N.C.App. 614, 225 S.E.2d 159 (1976). See also Rule 1(b) of the Rules of Appellate Procedure. The time for taking an appeal may not be enlarged by the appellate courts. Giannitrapani v. Duke University, supra ; Rule 27(c) of the Rules of Appellate Procedure. Nor did the filing by defendant of its motion, hereinafter discussed, on 6 January 1978 "(p)ursuant to (Rules) 60(b), 52(a), and 52(b)" toll the running of time within which to file notice of appeal under G.S. § 1-279(c) or Rule 3(c) of the Rules of Appellate Procedure, since motions pursuant to these rules apply only to final judgments and orders and clearly have no application to interlocutory orders such as the Order entered 4 January 1978 denying the Bank's motion to dismiss. See Sherwood v. Sherwood, 29 N.C.App. 112, 223 S.E.2d 509 (1976).

We next consider the Bank's purported appeal based on an exception to the portion of Judge Griffin's Order entered 10 January 1978 allowing plaintiffs to amend their complaint. An order allowing amendment of a pleading is interlocutory and not appealable. Williams v. Denning, 260 N.C. 539, 133 S.E.2d 150 (1963); Order of Masons v. Order of Masons, 225 N.C. 561, 35 S.E.2d 613 (1945); Funderburk v. Justice, 25 N.C.App. 655, 214 S.E.2d 310 (1975).

The Bank next purports to appeal from the denial of its Rule 60(b) motion for relief from the Order entered on 4 January 1978. Rule 60(b) has no application to interlocutory orders; by its express terms it applies only to final judgments and orders. Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975); 7 Moore's Federal Practice, P 60.20 (1978); 11 Wright & Miller, Federal Practice and Procedure: Civil § 2852 (1973). Since the denial of a Rule 12(b)(6) motion to dismiss is not a final judgment or order, the Bank's motion for relief from the Order entered 4 January 1978, could not, as a matter of law, have been proper under Rule 60(b), and the trial court should not have considered the motion. Sink v. Easter, supra.

Furthermore, the Bank did not seek relief from the Order denying its motion to dismiss on any of the grounds enumerated in Rule 60(b), and the motion was also improper for that reason. A motion under Rule 60(b) cannot be a substitute for appellate review, In re Brown, 23 N.C.App. 109, 208 S.E.2d 282 (1974), and the denial of a Rule 12(b)(6) motion is obviously not made appealable by a motion for relief from a final judgment or order under Rule 60(b) which is improperly made by a party to the proceeding and improvidently considered by the trial judge.

Finally, we consider the Bank's purported appeal from the findings of fact and conclusions of law entered by the trial judge. The Bank, pursuant to Rules 52(a) and 52(b) requested that the court make findings and conclusions with respect to its denial of the Bank's motion to dismiss. Rule 52(b) concerns amendments to the findings and conclusions relating to a final judgment, and obviously has no application with respect to interlocutory orders where findings and conclusions are neither made nor required. Rule 52(a)(2) requires the trial judge to make findings and conclusions "on decisions of any motion or order ex mero motu only when requested by a party and as provided by Rule 41(b)." The purpose for requiring findings of fact and conclusions of law is to allow meaningful review by the appellate courts. Jones v. Murdock, 20 N.C.App. 746, 203 S.E.2d 102 (1974). Consequently, a trial judge is not required to make findings and conclusions with respect to an interlocutory order that is not appealable, such as is the case with the denial of a Rule 12(b)(6) motion to dismiss. See 5A Moore's Federal Practice P 52.08 (1978); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2574 (1973). Hence, the trial court's entry of "Findings of Fact and Conclusions of Law" with respect to its denial of the Bank's motion to dismiss was merely gratuitous and surplusage, and does not afford grounds for appellate review of an interlocutory order that is otherwise not appealable. Additionally, the Bank's motion made pursuant to Rule 52(a) and (b) for the court to make findings and conclusions with respect to the denial of the Rule 12(b)(6) motion was just as improper as the Bank's Rule 60(b) motion and was also improvidently considered and erroneously granted.

The only question argued by the Bank in its brief is that the trial...