Raines v. Thompson

303 S.E.2d 413 (1983)

Louis E. RAINES v. Bruce Warren THOMPSON and Ingles Markets, Incorporated v. NANTAHALA POWER AND LIGHT COMPANY.

No. 8230SC814.

Court of Appeals of North Carolina.

June 21, 1983.

*414 Van Winkle, Buck, Wall, Starnes & Davis by Philip J. Smith, Asheville, for third-party plaintiffs.

Morris, Golding & Phillips by James Golding, Asheville, for third-party defendant.

WELLS, Judge.

Apparently conscious of the fact that this appeal is subject to dismissal, third party defendant first argues in its brief that "[t]his appeal is brought pursuant to the provisions of G.S. 1-277(a) and G.S. 7A-27(d)(1), both of which statutes permit an appeal from an interlocutory order which affects a substantial right." No appeal lies as a matter of right from the denial of a Rule 12(b)(6) motion or a motion to strike portions of pleadings pursuant to Rule 12(f). State v. Fayetteville Street Christian School, 299 N.C. 351, 261 S.E.2d 908, appeal dismissed, 449 U.S. 807, 101 S. Ct. 55, 66 L. Ed. 2d 11 (1980); O'Neill v. Southern National Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979); Godley Auction Co. v. Myers, 40 N.C.App. 570, 253 S.E.2d 362 (1979). This is because no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected by a timely appeal from a final judgment which resolves the controversy on its merits. Id.

Moreover, the third party defendant here has attempted to appeal not only from interlocutory orders, but from an order which does not involve plaintiff's claim against the original defendants. To allow such an appeal could and would successfully frustrate plaintiff's efforts to pursue his claim when he is not involved in the controversy between the original defendants and the third party defendant. Compare Lamb v. Wedgewood South Corp., 308 N.C. 419, 302 S.E.2d 868 (1983).

This appeal is

Dismissed.

HEDRICK and PHILLIPS, JJ., concur.