Take a glance at the Table of Contents of the Appellate Rules Committee’s invaluable “Guide to Appealability of Interlocutory Orders.” The Guide sets forth the many, many categories of orders that have been evaluated by the Court of Appeals under the prevailing “substantial right” test for immediate appealability. As we often discuss on this blog, if the order affects a substantial right of a party, the party can appeal right away. Otherwise, she usually has to wait for a final judgment.
At the same time, the black-and-white categories in the Guide may leave some room for creative advocacy. For example, some defenses can fit into several different subsections of Rule 12(b) simultaneously. The defense of sovereign immunity, for instance, might be characterized as an issue of subject matter jurisdiction, personal jurisdiction, or simple failure to state a claim.
What about a plaintiff’s failure to give notice to a defendant of a nascent lawsuit? On the one hand, this failure may fit into Rule 12(b)(4) (insufficiency of process) and/or Rule 12(b)(5) (insufficiency of service of process). An order denying a motion to dismiss under those subsections, however, is not immediately appealable. Could this defense be characterized instead as a lack of jurisdiction over the person under Rule 12(b)(2)? After all, by virtue of the defects in service, the court never obtained jurisdiction over the person of the defendant, right? This distinction could be important, because “motions to dismiss for lack of personal jurisdiction affect a substantial right and are immediately appealable.” A.R. Haire, Inc. v. St. Denis, 176 N.C. App. 255, 257-58, 625 S.E.2d 894, 898 (2006).
Recently, in Crite v. Bussey, the Court of Appeals considered an appeal from an interlocutory order denying Defendant’s motion to dismiss. Plaintiff had attempted personal service on Defendant at his home, but failed, and then attempted service by publication. Defendant later moved to dismiss on the ground that he was never served, citing Rules 12(b)(2), (4), and (5). The trial court denied the motion, and Defendant appealed from the interlocutory order.
Judge Dietz, writing for a unanimous panel, dismissed the appeal as being taken from an order that did not affect a substantial right. Relying on a thirty-year-old Supreme Court case, Love v. Moore, the panel drew a distinction between (i) the weighty due process concerns presented when a defendant’s minimum contacts with North Carolina are called into question, on the one hand; and (ii) mere “technical questions concerned only with whether that authority was properly invoked from a procedural standpoint,” on the other. Orders touching upon the former should be, and are, immediately appealable because they affect a substantial right. Orders implicating the latter are not.
In short, the label placed on a motion to dismiss may not be enough to shoehorn a run-of-the-mill interlocutory order denying that motion into an order that affects a substantial right.