Transtector Systems, Inc. v. Electric Supply, Inc.

WELLS, Judge.

I. Plaintiff’s Appeal

Plaintiff appeals from Judge Rousseau’s order dated 21 September 1992 which denied plaintiff’s motion that defendant comply with the order issued by the sheriff on 21 February 1992 and with the order issued by the Guilford County Clerk of Superior Court dated 13 April 1992. Initially, we must decide whether this appeal is interlocutory and should be dismissed.

A judgment or order of a trial court is either interlocutory or is a final determination of the rights of the parties. N.C. Gen. Stat. § 1A-1, Rule 54(a) (1990).. Interlocutory orders are those made during the pendency of a proceeding which do not finally dispose of the case but leave it for further action by the trial court in order to settle and determine the entire controversy. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). “An appeal from a nonappealable interlocutory order is fragmentary and premature and will be dismissed.” Hoots v. Pryor, 106 N.C. App. 397, 417 S.E.2d 269, disc. review denied, 332 N.C. 345, 421 S.E.2d 148 (1992), citing Cement Co. v. Phillips, 182 N.C. 437, 109 S.E. 257 (1921).

Judge Rousseau’s order required the third-party cross-appellant Lithonia to take certain actions with regard ,to the evidence of debts due defendant “pending further orders of this court.” The wording of this order clearly demonstrates that the order is an interlocutory order, since it was made during the pendency of the action and it did not dispose of the case in a final manner. In order for an interlocutory order to be immediately appealable, it *151must affect a substantial right and must threaten injury if not corrected before final judgment. Goldston v. American Motors Corp., 326 N.C. 723, 392 S.E.2d 735 (1990). Since plaintiff has not demonstrated that any substantial right is affected by this order, plaintiff’s purported appeal of an interlocutory order is hereby dismissed.

II. Third-Party Lithonia’s Cross-Appeal

Third-party Lithonia cross-appeals and contends that the trial court erred in denying its motion to dismiss pursuant to Rule 12(b)(2) of the North Carolina Rules of Civil Procedure because the court lacked authority to exercise personal jurisdiction over Lithonia. We agree and hold that the trial court’s denial of this motion was error.

N.C. Gen. Stat. § l-75.3(b) sets forth the requirements for personal jurisdiction over a party. The statute allows a North Carolina court to have personal jurisdiction over a party only if one or more of the jurisdictional grounds set forth in N.C. Gen. Stats. § 1-75.4 or § 1-75.7 are met and either: (1) service of process is made pursuant to Rule 4(j) or Rule 4(jl) of the Rules of Civil Procedure; or (2) service of a summons is dispensed with under the conditions in N.C. Gen. Stats. § 1-75.7 and § l-75.3(b).

Neither of the previously cited statutes allows a court of this State to exercise jurisdiction over Lithonia as the trial court has in this action. Lithonia is not a “person served in an action pursuant to Rule 4(j) or Rule 4(jl).” Plaintiff made no service of process upon Lithonia or substituted service as required by these rules. Since Lithonia never made a general appearance in this action and is not involved in a counterclaim to an action it brought, plaintiff cannot successfully argue that service of a summons is dispensed with under the conditions of N.C. Gen. Stat. § 1-75.7.

Since Lithonia was never properly brought within the jurisdiction of the trial court, we hold that their motion to dismiss should have been allowed. Accordingly, we reverse the trial court’s denial of this motion.

Upon remand, the trial court shall enter an appropriate order dismissing this action as to Lithonia.

Dismissed in part; reversed in part and remanded.

Chief Judge ARNOLD and Judge EAGLES concur. -