Shaver v. N. C. Monroe Const. Co.

• Citation: 54 N.C.App. 486,283 S.E.2d 526
• Decision Date: 03 November 1981
• Docket Number: No. 8118SC205,8118SC205
• Parties: Robert L. SHAVER v. N. C. MONROE CONSTRUCTION COMPANY and N. Carl Monroe, Individually.
• Court: Court of Appeal of North Carolina (US)

Page 526

283 S.E.2d 526

54 N.C.App. 486

Robert L. SHAVER v. N. C. MONROE CONSTRUCTION COMPANY and N. Carl Monroe, Individually.

No. 8118SC205.

Court of Appeals of North Carolina.

Nov. 3, 1981.

Smith, Moore, Smith, Schell & Hunter by McNeill Smith and Ben F. Tennille, Greensboro, for plaintiff-appellee.

Brooks, Pierce, McLendon, Humphrey & Leonard by Michael D. Meeker and Howard L. Williams, Greensboro, for defendants-appellants.

HEDRICK, Judge.

Defendants have attempted to appeal from an order denying their motion to dismiss plaintiff's first, second, and fifth causes of action "for lack of subject matter jurisdiction." "Ordinarily, there is no right of appeal from the refusal of a motion to dismiss." Godley Auction Co. v. Myers, 40 N.C.App. 570, 573, 253 S.E.2d 362, 364 (1979). The rule barring immediate appeals from such interlocutory orders serves to eliminate the unnecessary delay and expense of repeated fragmentary appeals and to present the whole case for determination in a single appeal from the final judgment; permitting parties to bring cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders would effectively procrastinate the administration of justice. Godley Auction Co. v. Myers, supra.

An order overruling an objection to the court's jurisdiction is ordinarily not immediately appealable, any error in the decision thereon being reviewed only on appeal from the final judgment; this rule of nonappealability, however, may be subject to certain exceptions under particular controlling statutes. 4 Am.Jur.2d Appeal and Error § 87 (1962). The controlling statute in North Carolina is G.S. § 1-277(b), which states, "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 statute, however, has no application in the denial of a motion challenging "subject matter" jurisdiction. A trial judge's order denying a motion to dismiss for lack of subject matter jurisdiction is interlocutory and not immediately appealable. Allen v. Wachovia Bank and Trust Co., 35 N.C.App. 267, 241 S.E.2d 123 (1978); American Health Association v. Helprin, 357 So.2d 204 (Fla.Ct.App.1978).

The defendants' motion challenged the state court's subject matter jurisdiction. Indeed, both parties' briefs deal exclusively with the question of whether 29 U.S.C.A. § 1132(e)(1) confers upon United States district courts exclusive subject matter jurisdiction to determine certain claims related to an employee pension plan.

Defendants may preserve their exception to the court's refusal to dismiss for lack of subject matter jurisdiction and assign that as error upon an appeal from a final judgment entered in the cause. When inquiry was made by the court at oral...