Trying to convince the Court of Appeals that a substantial right exists which warrants the immediate appeal of an interlocutory order is no easy feat, and the Court’s decision today in Skanska USA Building, Inc. v. Blythe Development Co. is no exception.
In Skanska, a third-party complaint was brought against the subcontractor who designed and built retaining walls at an upscale shopping mall in Charlotte after portions of those retaining walls collapsed. The original third-party complaint and summons incorrectly named the subcontractor’s sister corporation as the third-party defendant. The appeal ensued after the trial court granted a motion to amend the third-party complaint and summons to substitute in the proper third-party defendant.
The Court of Appeals dismissed the appeal in part because the appellant had not shown that the trial court’s interlocutory order affected a substantial right. However, rather than relying on prior North Carolina cases in which interlocutory orders on the sufficiency of service of process were found to not be immediately appealable, the Court turned to general language from its decision in Burton v. Phoenix Fabricators & Erectors, Inc.: “a mere desire to avoid trial does not give rise to a substantial right justifying an interlocutory appeal.”
The Court of Appeals may find this same language persuasive in other contexts if you find yourself arguing against an appellant’s attempt to invoke the substantial rights exception.