Will the North Carolina Court of Appeals hear every issue an appellant raises in an interlocutory appeal, or limit its review to core questions affecting a substantial right? Our Court of Appeals has long taken a narrow view of attempts to bootstrap additional, nonreviewable issues to an otherwise proper interlocutory appeal.
We discussed an appellant’s attempt to invoke such “pendent” appellate jurisdiction here a few months back, which generated some interesting dialogue on whether North Carolina courts should embrace the doctrine. Yesterday, the North Carolina Court of Appeals again touched on this issue in Bynum v. Wilson County when deciding whether to review portions of an appeal from an interlocutory order that do not affect a substantial right.
In Bynum, the North Carolina Court of Appeals limited its review of an interlocutory order to the governmental immunity issue and declined to reach other challenges involving traditional liability-based issues. Trying to persuade the Court of Appeals otherwise, the appellants highlighted other instances where the Court of Appeals allowed appellants to bootstrap non-immunity issues to immunity-related appeals. See, e.g., RPR & Assocs. v. State, 139 N.C. App. 525, 534 S.E.2d 247 (2000), aff’d, 353 N.C. 362, 543 S.E.2d 480 (2001) (addressing a service of process issue in an immunity-related appeal); Colombo v. Dorrity, 115 N.C. App. 81, 443 S.E.2d 752, disc. review denied, 337 N.C. 689, 448 S.E.2d 517 (1994) (addressing a statute of limitations issue in an immunity-related appeal).
In response, the Court of Appeals yesterday clarified that those cases were the exception rather than the rule:
Although we held in these two instances that, given the specific factual and procedural contexts from which these cases arose, it would promote judicial economy to resolve these relatively clear-cut non-immunity-related issues in the same opinion in which we addressed the defendants’ immunity-related arguments, we did not hold in either case that non-immunity-related issues would always be considered on the merits in the course of deciding an immunity-related interlocutory appeal or recognize the existence of a substantial right to have multiple issues addressed in the course of an immunity-related appeal.
Does this explanation suggest that the exception is based on considerations of simplicity rather than the importance of the “right” at issue or the level of interconnectedness between the non-immunity and immunity-related issues? Something to consider the next time you ask the Court of Appeals to take on additional issues, clear-cut or not, in an interlocutory appeal.
– Corinne Jones