John Kirby June 9, 2019

The Court of Appeals has again addressed the issue of whether an appeal is interlocutory and must be appealed dismissed. As a general matter, the Court of Appeals in North Carolina strongly enforces the general rule that an interlocutory appeal typically must be dismissed. An appeal is interlocutory if the case below is not fully adjudicated and decided. The basic principle behind this rule is that the Court of Appeals does not want to hear multiple appeals in one case, but rather they want to wait until the entire case is over to hear all appeals at one time.

In the case of Brown vs. Thompson, March 5, 2019, Court of Appeals address this general doctrine where a defendant had moved for summary judgment on the basis of res judicata. Several cases in North Carolina have held that where a defendant seeks to dismiss a case on the basis of res judicata, and the motion is denied, that the defendant can appeal this ruling immediately, even though the case is still pending in the trial court. The principle is that a defendant should not be subject to defending the same case twice through a trial and verdict. In this case, the plaintiff sued the defendant for defamation and infliction of emotional distress and harassment. The plaintiff also filed a separate civil case against the defendant arising out of the same facts, seeking a no-contact order. That no-contact order case was dismissed based on a failure to prosecute. The defendant argued that this dismissal of the domestic violence case operated as res judicata in the civil case for defamation and distress and harassment. The lower court denied the motion to dismiss. The Court of Appeals ruled that the appeal was interlocutory and and must be dismissed. Even though the defendant's argument was based on the doctrine of res judicata, he was not faced with the possibility of two inconsistent verdicts. The Court of Appeals recited several other cases which have espoused upon this issue, and have ruled that the interlocutory appeal based on a defense of res judicata is proper only if there is a possibility of inconsistent verdicts. Because the domestic violence case was dismissed based on a failure to prosecute, there was no possibility of an inconsistent verdict.

This case is a good example of the doctrine pertaining to interlocutory appeals. Such an appeal made before the case in the trial court has been fully adjudicated is generally not subject to immediate appeal, unless the appeal affects a substantial right. The cases addressing weather and appeal affects a substantial right are very fact-specific and each case must be reviewed on its own merits to determine whether and interlocutory order can be appealed.

I have represented numerous parties in appeals to the North Carolina Court of Appeals and North Carolina Supreme Court and Fourth Circuit Court of Appeals. I have also argued several cases raising this interlocutory issue. If you have questions about whether you may appeal from an adverse ruling prior to a final judgment in your case, you may contact me to discuss no matter.