Nothing derails a good appeal faster than a jurisdictional problem. And although the rules of procedure can be confusing, they cannot be ignored.
In Doe v. City of Charlotte, NO COA19-497, filed on August 18, 2020, the North Carolina Court of Appeals sent a reminder to appellate practitioners – follow the rules, or face dismissal of your appeal. The Court of Appeals, in a 26-page published opinion, provided a virtual treatise on motions for reconsideration, interlocutory appeals, and appellate jurisdiction in general. “Because jurisdictional defects compel such severe consequences,” the Court wrote, “we discuss the mistakes that occurred here for the benefit of the parties in this case and for future litigants” (emphasis added).
The plaintiffs, Jane Doe and John Doe, sued the defendants, the City of Charlotte and one of its police captains, for various torts arising out of an alleged malicious prosecution. The Superior Court granted partial summary judgment in favor of the defendants on all but one of the plaintiffs’ causes of action. That’s when the trouble started. The plaintiffs brought what they called a “Motion for Reconsideration” under North Carolina Rule of Civil Procedure 59. The Superior Court denied the motion. The plaintiffs then moved the trial court to certify its grant of partial summary judgment for immediate appeal under North Carolina Rule of Civil Procedure 54(b). The trial court complied and issued a stand-alone order that described the partial summary judgment order as a “final judgment” and wrote that “there is no just reason for delay in entering that final judgment.”
The plaintiff appealed from that order, and the defendants moved to dismiss. In the end, the Court of Appeals found jurisdiction to hear the appeal, but not before it pointed out the mishaps made along the way.
For starters, the plaintiffs conceded that they did not appeal within 30 days of the order granting partial summary judgment, as is required. The plaintiffs argued that their use of Rule 59 to seek reconsideration of the order tolled the time to appeal. The Court disagreed. Rule 59, it reminded the parties, is not a proper vehicle to seek reconsideration of interlocutory pre-trial rulings. The rule, and its tolling provision, applies to post-trial motions; not pre-trial orders.
Next, the Court rejected the plaintiffs’ plea for jurisdiction under Rule 54(b). The rule allows for interlocutory appeal from a pre-trial order when the court enters a final judgment on some, but not all claims, and specifically finds “there is no just reason for delay and it is so determined in the judgment.” N.C. R. Civ. P. 54(b). But a “stand-alone” Rule 54(b) certification – an order entered after the order granting partial summary judgment and done solely to use the necessary language – does not confer appellate jurisdiction. What the plaintiffs could have done, the Court wrote, is to request the trial court amend its original order and add the Rule 54(b) certification language. A stand-alone order, however, does not do the trick.
Down two strikes, the plaintiffs argued that the risk of inconsistent verdicts impacted a “substantial right” that created immediate appellate jurisdiction. For the third time, the Court disagreed. The risk of inconsistent verdicts, it noted, is the potential for irreconcilable results in multiple trials. This is not present simply because all claims arise from the same set of facts. A party that claims a risk of inconsistent verdicts must show the court why, under the facts of the particular case, the risk is present. The plaintiffs did not make the requisite showing.
And so, the Court did not reach the merits of the appeal based on these procedural shortfalls. That is, unless it issued a writ of certiorari, which the plaintiffs had not properly requested. But the court saw something “extraordinary” in the merits of the plaintiffs’ appeals. And in a unique, but not unprecedented move, the Court issued a writ of certiorari on its own initiative and heard the merits of the appeal.
The opinion is a good refresher on appellate jurisdiction. The plaintiffs escaped dismissal because the Court found the merits of their case extraordinary. Future litigants may not be so fortunate.
The appellate department at Cranfill Sumner is here to help with the nuances of North Carolina appellate procedure. If you have questions or need assistance, please contact the author.