In North Carolina appellate practice, it is often generally said that an interlocutory order affecting a substantial right is immediately appealable.  But as the Court of Appeals reiterated in an opinion issued this week, that an interlocutory order may affect a substantial right does not automatically mean it can be immediately appealed.  Rather, for immediate appealability, the order must not only affect a substantial right, but “the deprivation of that substantial right must potentially work injury to [the appellant] if not corrected before appeal from final judgment.”

In Hull v. Brown, a plaintiff brought claims for alienation of affection, criminal conversation, negligent infliction of emotional distress, and intentional infliction of emotional distress.  In response, the defendant challenged N.C.G.S. § 52-13 (the statute governing alienation of affection and criminal conversation, aka “the covenant claims”) as facially unconstitutional.  As Rule 42(b)(4) of the North Carolina Rules of Civil Procedure requires that a “facial challenge to the validity of an act of the General Assembly . . . shall be heard by a three-judge panel in the Superior Court of Wake County,” the defendant filed a motion to transfer the case to a three-judge panel in Wake County.  The trial court denied the motion to transfer, and defendant appealed that denial.

On appeal, defendant argued that the Court had jurisdiction over the interlocutory order denying transfer because it affected a substantial right.  The Court of Appeals recognized that

A litigant has a right to immediately appeal from an interlocutory order denying a motion to transfer a matter from a statutorily improper venue to a statutorily proper venue. See, e.g., Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (“Although the initial question of venue is a procedural one, there can be no doubt that a right to venue established by statute is a substantial right.”).

However, while the right to transfer venue is a substantial right, the Court dismissed the appeal as premature.  The rationale was that under Rule 42, the trial court must first determine what issues in the case are not contingent upon the constitutional challenge, and resolve those issues prior to transferring the facial challenge to a three-judge panel in Wake County.  In this case, the emotional distress claims were not contingent on the constitutional challenge, nor were the factual allegations underpinning the covenant claims.  Thus, the Court of Appeals determined that those issues should be resolved before the right to transfer under Rule 42(b)(4) would apply, and there would be no injury to defendant from having to litigate those issues prior to making his constitutional challenge.  The Court explained

Nothing prevents Defendant from raising the constitutionality of the covenant claims before a three-judge panel after all other issues in the case are resolved. If the claims subject to constitutional challenge survive summary judgment on other grounds, a jury may determine the damages of each cause of action separately while Defendant preserves its right to raise the constitutional issues before the three-judge panel before the trial court enters a final judgment.

This is yet another instance in which the appellate court effectively looks behind the appellant’s description of the substantial right to determine whether an interlocutory order is truly immediately appealable.  The defendant here sought interlocutory review on the ground that his motion was for transfer to a statutorily required venue, and that transfer to a statutorily required venue is a substantial right.  But in analyzing that argument, the Court of Appeals impliedly held that what the defendant was actually seeking to do was avoid having to go through trial before his constitutional challenge could be heard.  And as the Court noted, “avoidance of one trial is not ordinarily a substantial right.”  As the constitutional challenge could be heard by the three-judge panel after a trial on all other issues not dependent on the constitutional challenge, the defendant would not be injured by having to wait until after a final judgment for an appeal to be heard on the transfer issue.

While the interplay between Rule 42 and interlocutory appeal jurisprudence suggests this is the legally correct outcome, does it make sense from a practical standpoint?  If a statutory cause of action is challenged as unconstitutional, should a defendant have to litigate that case fully through trial before having the constitutionality issue determined?  Is there a compelling argument that avoidance of a trial on an unconstitutional cause of action is, in fact, a substantial right that should be immediately appealable?  Or is this simply an extension of the constitutional avoidance doctrine that counsels that a court should avoid deciding cases on constitutional grounds if at all possible?

Of note, the defendant-appellant in this case had also filed an alternative petition for writ of certiorari asking the Court to exercise jurisdiction over the appeal even if it were to be deemed interlocutory and not subject to immediate review.  In support of that petition, defendant argued that the claims presented in the appeal were meritorious and addressed issues constitutional of first impression, and that the interests of justice would be served by immediate review.  The Court denied the petition for cert on the same day it published the opinion dismissing that appeal, but there was no mention of the petition in the Court’s opinion.

Curious to hear any thoughts in the comments below.

–Patrick Kane