An interlocutory appeal can really throw a wrench in the orderly progress of a case.  A party may have a colorable argument that the trial court wrongly decided an issue that affects a “substantial right,” which gives the party a right to immediately appeal.  N.C. Gen. Stat. 1-277(a).  A proper notice of appeal from such an order divests the trial court of jurisdiction over “the matter embraced” by the order on appeal.  N.C. Gen. Stat. 1-294.

But what happens when an aggrieved party notices an appeal from an interlocutory order that does not affect a substantial right?  You might think the appeal could just be dismissed, and the parties could move on with the case in the trial court.  Unfortunately, this does not really work as a matter of practice.  The trial court does not have the power to dismiss an appeal, unless there is some fault in the perfecting of the appeal (e.g., the appellant misses a key deadline in putting the record together).  The North Carolina Court of Appeals, for its part, will not entertain a motion to dismiss an interlocutory appeal until the record is filed.  By that point, however, the parties are likely already preparing their briefs on the merits of the appeal.  And even then, the Court will usually defer any motion to dismiss to the “merits panel,” meaning relief on the motion to dismiss won’t come any more quickly than the merits opinion anyway.

There is one narrow path through this morass of wasted time and resources.  As described by the Court of Appeals in the infamous RPR & Assocs. v. Univ. of N.C.-Chapel Hill case, 153 N.C. App. 342 (2002), the trial court can choose to ignore the improper appeal and blaze forward on the entire case.  The RPR pathway does nothing to stop the appeal, but does keep the trial proceedings going.

As a matter of practice, this does not happen often.  Just imagine what happens if the trial court makes the wrong call on the question of the immediate appealability of the interlocutory order–you then have a year’s worth of trial-level litigation that was conducted without jurisdiction during the pendency of the appeal.  Trial courts tend to avoid this whole mess by staying the whole case for any appeal.  (Note: this exact situation did in fact occur in the RPR case.)

But every once in a while, a trial court does decide to move forward even while an appeal is pending.  Judge Gale did exactly this last week in an Order denying an appellant’s motion to stay in the Out of the Box Developers v. Logicbit Corp. case.  In Out of the Box, the court issued an order requiring defendants to comply with a protective order in place in the case.  Such discovery orders are generally not immediately appealable.  But the order also allowed discovery and required additional briefing to determine whether discovery sanctions were appropriate for defendants’ intransigence.  Discovery orders that are coupled with enforcement sanctions are generally immediately appealable.  Judge Gale decided that, because the court had not (yet) found contempt or entered sanctions, the interlocutory appeal from the discovery order was improper and the court would continue to preside over the entire case going forward.

You should also take a moment to look at Mack Sperling’ take on this order, found on his excellent blog, the N.C. Business Litigation Report.

–Matt Leerberg