One of the oft-recurring issues in appellate decisions is that of whether the ruling sought to be appealed is actually, at least at that time, appealable. This week, both the North Carolina Court of Appeals and the Fourth Circuit addressed this issue.
By an unpublished opinion in Sheppard v. Winston-Salem/Forsyth Cnty Bd. of Educ., the North Carolina Court of Appeals held that the Appellants’ appeal from the trial court’s order granting a motion to dismiss that disposed of some, but not all, of the Appellants’ claims was impermissibly interlocutory. Appellants argued that the order affected a substantial right because there was a risk that they would be required to undergo two separate trials on the same issues, and that the separate trials could result in inconsistent verdicts. The Court of Appeals rejected this argument, noting first that:
The mere fact that claims arise from
a single event, transaction, or occurrence does not, without more, necessitate a
conclusion that inconsistent verdicts may occur unless all of the affected claims are
considered in a single proceeding.
(internal citations omitted)
Appellants contended that a disputed fact central to all of their claims, both those that had been dismissed and those still proceeding in the trial court, was whether there was an act of sexual intercourse on the premises of a public high school. Thus, they argued, one jury could find that there had been such an act, while a second jury could find that there had not been such an act–hence the risk of inconsistent verdicts. However, the Court held that it did not believe that juries would need to determine this particular issue and, even if the first jury did return a verdict on the issue, the doctrine of collateral estoppel would preclude relitigation of that already determined issue in a second trial. Determining that Appellants’ argument was, at its core, nothing more than an argument that they should have all their claims determined in a single proceeding, the Court dismissed the appeal as being from an interlocutory order that did not affect a substantial right.
(As an aside, from a practical standpoint, one way in which plaintiffs attempt to get around a holding like this and have an appeal heard on a dismissal of less than all claims, is to take a voluntary dismissal of the remaining claims pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. Plaintiffs can then have the appeal heard and refile the voluntarily dismissed claims. Such was the approach taken by the Plaintiff-Appellant in another case in which the Court of Appeals issued a decision yesterday, Tipton v. High Point University: “Because plaintiff voluntarily dismissed its remaining claims, the trial court’s order granting [defendants’] motion to dismiss is a final order, and is immediately appealable to this Court.”)
The Fourth Circuit also addressed an issue of immediate appealability this week with its opinion in Hunter v. Town of Mocksville. In that case, the Court was reviewing, in part, the district court’s denial of individual defendants’ motion for summary judgment based on the qualified immunity defense. Defendants-Appellants argued that they were entitled to qualified immunity because they had not committed a violation of Plaintiffs’ constitutional rights. While ordinarily, the denial of a motion for summary judgment based on the doctrine of qualified immunity is immediately appealable, the Court recognized an exception to this rule when the order from which the appeal is being taken turns on whether there is a genuine issue of fact that needs to be tried. In Hunter, the district court determined that a question of fact regarding causation existed on the issue of whether the Defendants-Appellants violated a constitutional right. As such, the Court held that the issue presented was not immediately appealable and it had no jurisdiction to review that portion of the lower court’s order.
In a footnote, the Court explained the distinction between the issue in this case and what often is before the Court on an appeal of an order relating to qualified immunity:
[A] district court’s order denying a defendant’s motion for summary judgment [is] an immediately appealable ‘collateral order’ (i.e., a ‘final decision’) . . . where (1) the defendant was a public official asserting a defense of ‘qualified immunity,’ and (2) the issue appealed concerned, not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of ‘clearly established’ law. Indeed, this kind of summary judgment is otherwise ‘effectively unreviewable,’ for review after trial would come too late to vindicate one important purpose of ‘qualified immunity’—namely, protecting public officials, not simply from liability, but also from standing trial.
(internal citations and quotations omitted).
So as a reminder, while there are interlocutory orders that can be immediately appealed, practitioners should always remember that the issue of appealability of interlocutory orders will need to be examined and appealing parties should be prepared to show the court the basis for the court’s jurisdiction over the appeal.