Civil Practice – Appeals – Interlocutory Orders – Real Property – Title

Stanford v. Paris. (Lawyers Weekly No. 10-06-0840, 10 pp.) (Sarah Parker, Ch.J.) Appealed from Orange County Superior Court. (Carl R. Fox, J.) On writ of certiorari to the Court of Appeals. N.C. S. Ct.

Holding: In a case involving multiple defendants and multiple claims, plaintiffs waited until there was a final judgment before appealing several interlocutory orders. The plaintiffs were not required to appeal the interlocutory orders immediately; therefore, their appeal should not have been dismissed as to the interlocutory orders.

We vacate the orders dismissing plaintiffs’ appeal and remand to the Court of Appeals for consideration of plaintiffs’ appeal on the merits.

The trial court did not certify that its Feb. 16, 2007, order was a final judgment and that there was no just reason for delay under N.C. R. Civ. P. 54(b), which would have made the order subject to immediate appellate review. The order did not resolve all claims or all rights and liabilities of all parties and was, thus, not a final order.

Interlocutory appeals are discouraged except in limited circumstances. Where a party is entitled to an interlocutory appeal based on a substantial right, that party may appeal but is not required to do so.

Defendants, relying on Watson v. Millers Creek Lumber Co., 178 N.C. App. 552, 631 S.E.2d 839 (2006), which quoted North Carolina Department of Transportation v. Stagecoach Village, 360 N.C. 46, 619 S.E.2d 495 (2005), argue that an interlocutory order such as the Feb. 16, 2007 order in this case affecting title to land must be immediately appealed even though it is not a final order. This reliance is misplaced.

First, the procedural posture of Watson is distinguishable from the present case. In Watson the Court of Appeals allowed the interlocutory appeal, determining that since the order affected title to land, a substantial right was adversely affected. By contrast, in this case plaintiffs’ appeal has been dismissed.

Second, Stagecoach Village was a condemnation case. This court has said that in condemnation cases, after a hearing pursuant to G.S. § 136-108, appeal of an issue affecting title to land or area taken by the state is mandatory and the interlocutory appeal must be taken immediately. The holding that appeal of an interlocutory order affecting title to land and area taken is mandatory is in the context of condemnation cases. Disregarding the words “in condemnation cases” misconstrues the holdings in Stagecoach Village, Department of Transportation v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999), and N.C. State Highway Comm’n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967), that such interlocutory appeals are mandatory.

Plaintiffs gave timely notice of appeal after entry of the final consent judgment on July 18, 2008. Plaintiffs did not forfeit their right to appeal by not taking an immediate appeal of the interlocutory Feb. 16, 2007, order.

Vacated and remanded.