Appellate practitioners are undoubtedly familiar with the general rule that “there is no right of immediate appeal from interlocutory orders.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). But interlocutory orders can be reviewed eventually—on a later appeal from the final judgment. See N.C. Gen. Stat. § 1-278. Earlier this year, the court of appeals reaffirmed that if certain conditions are met, the court can review such an interlocutory order in connection with its review of the final judgment even if the notice of appeal does not specifically reference the interlocutory order. See Tinajero v. Balfour Beatty Infrastructure, Inc., — N.C. App. –, –, 758 S.E.2d 169, 175 (2014).
The appellants in Smoky Mountain Sanctuary Property Owners Ass’n, Inc. v. Shelton , decided yesterday, sought to rely on that rule. There, the trial court bifurcated the plaintiff’s claims from the defendants’ counterclaims and cross-claims. After a bench trial on the plaintiff’s claims, the court found in favor of the plaintiff and later denied a motion for a new trial. The defendants appealed with the goal of challenging both the results of the bench trial and the initial bifurcation order that divided the parties’ claims in the first place. Although the defendants did not specifically identify the bifurcation order in the notice of appeal, the Tinajero standard was met, and the appellate court could still review the interlocutory order, right?
Wrong. The defendants’ entire appeal was interlocutory because the counterclaims and cross-claims had not been resolved. In other words, the Tinajero rule only applies to a proper appeal from a true final judgment. Even though the trial court had referred to its judgment as “final,” that did not change the analysis, and the appeal was dismissed. (Indeed, remember that the court of appeals itself sometimes uses the word “final” in this context, where there is a “final judgment as to one or more but fewer than all of the claims or parties.” N.C. R. Civ. P. 54(b).)
At the same time, take note that there are some kinds of cases in which other statutes change the general rule on appeals from interlocutory orders. For example, in certain cases (including juvenile cases) the General Assembly has allowed parties to appeal before a typical “final” judgment. In that instance, the statute controls. Thus, the Court of Appeals explained in a different opinion issued yesterday that a trial court lacks jurisdiction to proceed when a party has appealed under a statute that allows for what would otherwise be an impermissible premature appeal. On the other hand, the mother in yet another case did not have a right to appeal an order that was not specifically allowed under the statute. Be sure to double check the applicable statutes if you are trying to appeal an order—interlocutory or “final.”