In general, only final judgments may be appealed.  In other words, interlocutory orders entered during the course of the litigation are usually not appealable until the case is concluded.  North Carolina appellate courts restrict review of interlocutory orders to prevent “fragmentary appeals.”  In other words, the appellate courts would prefer to review a case for errors a single time, after it is over.

There is an oft-litigated exception: whenever the appellant can show that the interlocutory order “affects a substantial right.”  See N.C. Gen. Stat. § 1-277(a); N.C. Gen. Stat. § 7A-27(d)(1).   Suppose an interlocutory order resolves multiple issues, some of which affect a substantial right and some of which do not.  Can you ask the court to accept immediate review of the entire interlocutory order?

You could certaintly make a good case for comprehensive review of the interlocutory order.  First, both “substantial right” statutes allow immediate appeal whenever the order affects a substantial right.  An order containing an issue affecting a substantial right should itself affect a substantial right.  In addition, the primary policy justification for limiting interlocutory review–preventing fragmentary appeals–is mitigated if there is going to be an interlocutory appeal anyway.  Why not allow the parties clarity on all issues presented in the interlocutory order now, instead of waiting for the conclusion of the litigation?

In an important decision issued this week, the North Carolina Court of Appeals declined to review the entirey of an interlocutory order on appeal because one of the issues decided did not itself affect a substantial right.  See Richmond County Board of Education v. Cowell et al.  In Richmond County, the Plaintiff county board of education challenges a 2011 amendment to the North Carolina general statututes purporting to require counties to collect $50.00 from each person convicted of “an improper equipment offense” and transfer the money to the state coffers.  See N.C. Gen. Stat. § 7A-304(4b).  (For the uninitiated, you are guilty of an “improper equipment offense” whenever you are caught speeding, but the ADA allows you to blame it on a faulty speedometer.  Car manufacturers should really look into this widespread failure of dashboard instruments.)  Plaintiff challenges the statute on the ground that the North Carolina constitution requires penal penalties to remain in the hands of the county that collects them.  See N.C. Const. Art. IX, Section 7.

Defendants moved to dismiss on two grounds, asserting sovereign immunity from suit and that plaintiff lacked standing.  The trial court entered an order denying the motion to dismiss.  On defendants’ appeal, the Court of Appeals found that defendants had a well-established right to appeal the denial of their motion to dismiss on sovereign immunity grounds.  Because sovereign immunity protects the state not only from paying damages, but from being sued in the first place, the state would lose its right to be free from unwarranted litigation if a trial court improperly denied a motion to dismiss on soveregin immunity grounds and immediate appeal were not available.  In other words, the interlocutory order affected a substantial right of defendants and was immediately appealable, at least as to the sovereign immunity issue.  The trial court’s decision on the standing issue, however, did not affect defendants’ substantial rights.  The Court of Appeals therefore dismissed “defendants’ standing argument as interlocutory and not affecting a substantial right.”  (emphasis added).

That is, even though the interlocutory appeal was heard on Issue 1 (sovereign immunity), it was not heard on Issue 2 (standing).  The decision may not foreclose the argument that an interlocutory order on appeal should be reviewable in its entirety if any part of it affects a substantial right, as the court did not address the issue head-on.  But appellants beware:  in your next interlocutory appeal, you should explain to the court why each issue decided in the order on appeal affects a substantial right.  And while you are at it, have your mechanic verify that your speedometer is in safe, working condition.

–Matt Leerberg