It is black letter law that there is typically no right to an immediate appeal from an interlocutory order. This well-established rule exists in order to allow a trial court to bring an entire case to final judgment before it is sent to the appellate courts, and avoid piecemeal litigation.
There are, however, two common avenues by which an interlocutory order can be immediately appealed. The first avenue is if the order or judgment is final as to some but not all of the claims or parties, and the trial court certifies the appeal under N.C.G.S. § 1A-1, Rule 54(b). The second is if the trial court’s decision deprives the appellant of a “substantial right” which would be lost without immediate appellate review. Note, there are other statutory ways to appeal an interlocutory order, but they are invoked far less frequently.
Earlier this month, the Court of Appeals discussed one such “substantial right” that can be useful for practitioners to keep in mind: the risk of inconsistent verdicts. In Holland v. Harrison, the Plaintiff had brought state law claims against her employer and supervisors for wrongful discharge, tortious interference with contract, and violation of due process rights, and federal claims under 42 U.S.C. § 1983 for violation of her rights to free speech and due process. Defendants filed a motion to dismiss, and the trial court dismissed all claims except for Plaintiff’s claim for tortious interference with contract and wrongful discharge. Plaintiff then filed a timely notice of appeal (with no certification from the trial court) as to the dismissal of her § 1983 claim for violation of her right to free speech.
In holding that Plaintiff’s appeal was proper despite the order being interlocutory, the Court of Appeals held that one of Plaintiff’s “substantial rights” was at risk of being lost due to the possibility of inconsistent verdicts. The Court of Appeals explained that such a risk exists where there are overlapping factual issues between a determined claim and an undetermined one that remains in a case. Issues are the “same” for purposes of that determination if the facts relevant to their resolution overlap in such a way as to create a risk that they may be found differently if litigated separately. In Holland, the Court of Appeals noted that the Plaintiffs complaint alleged that she was discharged because she had protested a work order relating to a patient, and that Defendants asserted she had been fired for failing to report to work. Factual issues regarding the actual cause of the Plaintiff’s dismissal would arise in resolving both the wrongful discharge claim and the First Amendment claim, because both claims hinged on the actual reason for her termination. There was thus a risk of the trial court finding as fact that Plaintiff was dismissed for one reason, and a jury finding as fact Plaintiff was dismissed for another, necessitating an appeal.
In many cases, multiple claims with overlapping factual issues are brought at the same time, and thus this is a good rule to keep in mind after an unfavorable decision by a trial court.