The Court of Appeals’ latest batch of opinions includes several reminders about the importance of proving that appellate jurisdiction is proper in an appellant’s opening brief. Not in a conclusory fashion. Not in the appellant’s reply brief. And perhaps not via an appellant’s opposition to a motion to dismiss an appeal.
In SR Auto Transportation, Inc. v. Adam’s Auto Group, Inc., 2023-NCCOA-3, the trial court orally dismissed defendants’ third-party claims against various individuals. Before the written order was entered, defendants sought a Rule 54(b) certification—which the trial court declined to enter. Defendants then appealed.
Before defendants filed their opening appellate brief, appellees moved to dismiss defendants’ appeal on the grounds that it was challenging a non-appealable interlocutory order. Defendants promptly filed a response asserting that “the Order is final as to Third-Party Defendants and the ‘Order impairs [defendants’] substantial right to have this common issue of fact heard in the same forum.’” ¶ 6. As is common in these cases, the Court of Appeals deferred the motion to dismiss to the merits panel.
Sometime later, defendants filed their principal appellate brief. But according to the SR Auto opinion, that brief contained “no facts or argument to support appellate review on the ground the challenged order affects a substantial right.” ¶ 11. Rather, defendants’ brief asserted “in conclusory fashion that the Order was final as to their third-party claims or was otherwise appealable as an interlocutory order.’” ¶ 11.
And this is where the refresher on appellate jurisdiction begins.
A trial court order denying a request for Rule 54(b) certification is generally not appealable.
While a trial court’s denial of a Rule 54(b) certification is technically reviewable by writ of certiorari, a party should not ask the appellate court to consider its appeal as a petition for writ of certiorari—in either its brief or (as happened in this case) during oral argument. See ¶ 10 at n. 1. A separate petition for writ of certiorari is required.
As a side note, my prediction is that even if an appellant properly sought certiorari review of a Rule 54(b) denial, extraordinary facts would have to exist for the appellate courts to take up such an invitation. Denials of Rule 54(b) certification are discretionary determinations. And while an opinion or order allowing certiorari review of such an order might exist somewhere, I have never seen one.
When a trial court denies a request for Rule 54(b) certification, an appellant should lick its wounds and turn to demonstrating some other avenue for immediate appellate review—which is usually the substantial right analysis.
A host of appellate opinions, including SR Auto, simplify the interlocutory appeal analysis by stating that “the only way an appellant may establish appellate jurisdiction in an interlocutory case, absent Rule 54(b) certification, is by showing grounds for appellate review based on the order affecting a substantial right.” ¶ 12 (emphasis in original).
Without question, the most common method for obtaining appellate review of an interlocutory order is the substantial right prong of N.C.G.S. § 7A-27(b)(3)(a). But is it really the only other way to establish a right to appellate review of an interlocutory order?
When searching for a right to pursue interlocutory appellate review, don’t overlook less common statutory jurisdiction grounds.
In addition to the ubiquitous “substantial right” ground, section 7A-27(b)(3) contains five other statutory grounds for obtaining appellate review of a non-final judgment. Interestingly, none of those subsections use the phrase “substantial right.” And then there is my personal favorite, which is located in section 7A-27(b)(4). Subsection (b)(4) sums up the absolute rule regarding the right to appellate review rather nicely. Appellate review exists “[f]rom any other order or judgment of the superior court from which an appeal is authorized by statute.”
Subsection 7A-27(b)(4) is not an anomaly. Peppered throughout North Carolina’s General Statutes are assorted provisions that authorize interlocutory appellate review in special circumstances. See e.g., N.C. Gen. Stat. § 50-19.1; N.C. Gen. Stat. § 1-569.28; N.C. Gen. Stat. § 50-19.1; N.C. R. Civ. P. 62(h). Those statutes contain no mention of the fact-intensive substantial right analysis. The more common independent statutory grounds are explored in Chapter 3 of the treatise. But I have not read the “bajillion” volumes of the General Statutes—which means other independent grounds for appellate review likely are buried within the General Statutes. Send them our way when you find them!
An appellant’s response to a motion to dismiss may be insufficient to satisfy an appellant’s duty to demonstrate the right to interlocutory appellate review.
Finally, SR Auto reminds us about the dangers of asserting a right to substantial right review in a “conclusory fashion.” ¶ 11. Appellate Rule 28(b) requires a statement of grounds of appellate review in an appellant’s opening brief. And when an appeal is interlocutory, that “statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.” Waiting until the reply brief to argue how an order impacts a substantial right will not work. ¶ 12.
Even more interesting, SR Auto suggests that filing a “reply brief [that] purports to incorporate  arguments advanced in  response” to a previously filed motion to dismiss the appeal may also be insufficient. SR Auto flagged that issue, but then “presume[ed] without deciding” that the motion to dismiss response was sufficient to raise the issue. The SR Auto Court was able to avoid the issue because defendants’ opposition to the motion to dismiss failed to demonstrate that any substantial right would be lost absent immediate appeal.
In other words, the answer to that last question will have to wait until another day.