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Dram Shops, Fish, Dogs, and Opossums: Appellate Jurisdiction Edition

When reading through recent batches of opinions from the North Carolina Court of Appeals, you may notice a new feature: a statement regarding the Court’s jurisdiction. While such a statement is required in an appellant’s brief, see N.C. R. App. P. 28(b)(4), it is not required in an opinion. And although the Court has addressed jurisdiction if necessary, opinions have not traditionally included a separate statement on jurisdiction when it was not in dispute. But notice the emphasis that some judges are placing on jurisdiction. Practitioners would do well to make sure that jurisdiction is properly addressed in their briefs.

In that vein, the Court’s most recent opinions provide several reminders regarding appellate jurisdiction.

In Davis v. Hulsing Enterprises, LLC, the plaintiff appealed after a jury found that the defendants were not liable for negligent rescue of an intoxicated woman who later died from alcohol poisoning. The notice of appeal only listed the judgment entered on the jury’s verdict, but the appellant’s arguments centered on the trial court’s earlier dismissal of a common-law dram shop claim. Although the Court of Appeals would not ordinarily have jurisdiction over that order, the Court found that it had jurisdiction under section 1-278, which allows for appeal of an interlocutory order “involving the merits and necessarily affecting the judgment.” The plaintiff’s objection to the order on the motion to dismiss was “inherent to the hearing” on the motion, and he identified the order in the record and the proposed issues.

On the other hand, the Court found that that it did not have jurisdiction in Stokes v. Crumpton. There, the parties agreed to arbitration under the Family Law Arbitration Act. After an arbitration award was entered, the plaintiff allegedly discovered evidence that the award was procured through the defendant’s fraud. The plaintiff filed a motion to vacate the award and filed a motion to compel discovery he sought to bolster his fraud theory. The trial court denied the motion, and the plaintiff appealed. The Court of Appeals held that the order denying the motion to compel was not appealable under the arbitration act and did not affect a substantial right. The Court recognized that orders denying discovery can affect a substantial right if that discovery is “highly material” to a “critical question to be resolved in the case.” But here, although there may have been “suspicious” circumstances surrounding the defendant’s behavior, the Court did not find that the plaintiff had identified any “specific, ‘objective’ evidence of misconduct” that would allow him to appeal from an interlocutory discovery order. The Court labeled the motion to compel as a “fishing expedition” and found that no substantial right was affected. Judge Calabria vigorously dissented, creating the likelihood of our Supreme Court having the ultimate word on the case.

In Roberts v. Thompson, the defendants’ dog bit the plaintiff, who brought claims for the injuries. The trial court entered an order that granted summary judgment to the plaintiff on the issue of liability, reserved the issue of damages for trial, and apparently attempted to certify the order for immediate appeal by finding that there was no just reason for delay. Relying on Rule 54, the defendants then sought to appeal—but the Court of Appeals dismissed the appeal. Because “Rule 54(b) only applies to final judgments” as to a claim or party, not an issue, the trial court could not certify its interlocutory order as immediately appealable.

Finally, in PETA v. Myers, the Court addressed “whether anyone may speak for the opossums”—and specifically those who are used in Clay County’s annual “possum drop” celebration. Seeking to put an end to this tradition, PETA had challenged the State’s issuance of certain captivity licenses for opossums. An ALJ mostly sided with PETA, and the State attempted to appeal from the trial court’s denial of review of the ALJ decision. But in the meantime, the General Assembly passed a statute that exempts Clay County from state wildlife laws regarding the treatment of opossums for a specified portion of the year. Despite the parties’ “passionate and interesting legal arguments,” the Court of Appeals concluded that the issue was moot because of the statute and dismissed the appeal.

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