NC Supreme Court: Right to Non-Mandatory Appeals From Previous Orders In A Case Not Waived Until After A Final Judgment Is Entered
This case involved construction of a will and multiple plaintiffs and defendants. The trial court entered several orders dismissing various defendants, including one entered February 16, 2007. On July 18, 2008 the trial court entered a final consent judgment which acknowledged that the only remaining issues were one of the defendant's liability for a few remaining items in the estate. The consent judgment also stated that it was a final judgment and resolved all outstanding issues. Plaintiffs timely appealed the consent judgment, and also appealed several previously entered orders, including the February 16, 2007 order.
Defendants claimed that Plaintiffs should have filed their notice of appeal within 30days of the orders dismissing the defendants, not the final consent judgment. The trial court and the Court of Appeals dismissed Plaintiffs' appeal.
The Supreme Court granted certiorari on the question of whether Plaintiffs waived their right to appeal the February 16 2007 order by waiting to appeal until the entry of the final consent judgment. The Supreme Court held that the February 16 did not reserve all rights, claims, and liabilities in the case, and was thus interlocutory and not a final order. The February 16 order also did not affect a substantial right of Plaintiffs, and it was not certified for immediate appeal by the trial court, so Plaintiffs couldn't have successfully appealed it within 30 days of its entry. Defendants argued that Plaintiffs had to immediately appeal the order because the case involved title to land, which was a substantial right, but the Court said this was true only in the land condemnation context.
The Court concluded that because there was no final order in the case until the final consent judgment, and because Plaintiffs timely appealed the consent judgment, they did not waive their right to appeal previous orders in the case (including the February 16, 2007 order). The Court vacated the COA's dismissal of Plaintiffs' appeal and remanded for consideration on the merits.