In its final set of opinions from 2016, the North Carolina Court of Appeals provided some helpful reminders for appellate practitioners.
1. Unless some other exception applies, you may appeal from an interlocutory order only if it affects a substantial right. In Pass v. Brown, the Court reminded us that an appellant must identify a substantial right affected by each issue, not by an immediate appeal as a whole. Despite the fact that two issues stemmed from interpretation of a single contract, the appellants in Pass only explained how one of these issues affected a substantial right. Thus, the Court dismissed a portion of the appeal. The Court explained that “where an interlocutory order addresses multiple claims or issues, and only one of those claims or issues affects a substantial right, only the issue which affects a substantial right is properly before this Court.” In other words, as we have discussed here and here, there is generally no pendent appellate jurisdiction in North Carolina.
2. The distinction between alternative bases to affirm judgments and cross-appeals is somewhat murky. But if you have doubt, you might want to go ahead and file a cross-appeal. In Harrell v. Midland Board of Adjustment, the appellants sought to challenge the trial court’s affirmance of a municipal board’s notice of violation regarding subdivision streets. The town argued that some of the appellants’ arguments were not preserved because they had not been raised before the board of adjustment. When the trial court decided “in its discretion” to “consider” those arguments, was the town required to cross-appeal that issue? The Court of Appeals said it was “unclear,” decided to address the cross-appeal, and ultimately concluded that most of the arguments had not been preserved.
3. Are there times when you must appeal from an interlocutory order? Yes. In 1967, the Supreme Court of North Carolina indicated that “ordinary prudence requires an immediate appeal” from an interlocutory order regarding ownership of land in a condemnation proceeding. N.C. State Highway Comm’n v. Nuckles, 271 N.C. 1, 14, 155 S.E.2d 772, 784 (1967). In its recent opinions, the Court of Appeals also reaffirmed that interlocutory orders “from a condemnation hearing concerning title and area taken are vital preliminary issues that must be immediately appealed.”
But that rule has been strictly limited. See Dep’t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 709 (1999). And last week, the Court of Appeals limited Nuckles again—despite the fact that both parties asserted that the trial court’s interlocutory order in a condemnation case affected a substantial right. Because the appeal did not fall within the narrow Nuckles rule, the appeal was “premature and not properly before this Court.”
4. Finally, you must ensure that your notice of appeal encompasses everything that you want to challenge. In Gause v. New Hanover Regional Medical Center, the trial court entered an order dismissing the plaintiffs’ claims and denying the plaintiffs’ motion to amend the complaint. The plaintiffs sought to challenge the denial of the motion to amend, but the notice of appeal only referenced the portion of the order “which dismissed Plaintiffs’ action without prejudice.” The Court of Appeals found that the notice of appeal “did not refer to or encompass” the amendment issue. The rule requiring a notice of appeal to designate the order being appealed “can be treacherous for an appellant whose notice identifies one but not all provisions in the order or judgment from which the appellant seeks relief.” Similarly, in Pittsboro Matters, Inc. v. Town of Pittsboro, the trial court dismissed two claims for lack of standing and eight claims for failure to state a claim upon relief can be granted. The plaintiffs did not appeal the portion of the order dealing with standing, and therefore the Court of Appeals dismissed that portion of the appeal.