The intersection between sovereign/governmental immunity and interlocutory appeals continues to provide ample fodder for this blog. Following on the heels of the Court of Appeals’ thought-provoking opinion two weeks ago in Union County v. Town of Marshville (blogged about here ), today the Court addressed the issue in Foushee v. Appalachian State University. Foushee involved a wrongful death action brought against Appalachian State University. Because the university is an arm of the state, the State Tort Claims Act mandates that any such cases be brought in the North Carolina Industrial Commission. The university filed a motion to dismiss the action in the Industrial Commission, arguing that the plaintiff’s claim was barred by the Tort Claims Act’s ten-year statute of repose and that therefore the university was entitled to sovereign immunity. After a deputy commissioner denied the motion, the university sought immediate review by the Full Commission. The issue of whether the university was entitled to immediate review was referred to the chairman of the Industrial Commission, who denied the university’s request for immediate review on the basis that the motion to dismiss was not actually based on sovereign immunity, but rather on the statute of repose. The university ultimately brought review of the chairman’s order to the Full Commission, which dismissed the appeal on the grounds that “neither the State’s Tort Claims Act, nor the Commission’s Tort Claims Rules provide for the right of immediate appeal to the Full Commission of interlocutory Orders.” The university then appealed the Full Commission’s Order to the Court of Appeals.

The Court of Appeals held that the appeal was interlocutory and dismissed the appeal without reaching the merits. The Court was careful to note, however, that the only Order before it was the Full Commission’s Order determining that there was “no right of immediate appeal from an interlocutory decision in a case before the commission arising under the Tort Claims Act.” As the Full Commission’s Order was clearly interlocutory and the university had not met its burden of showing that the Order affected a substantial right, the appeal was dismissed.

The Court did not stop there, however, and went on to discuss the university’s underlying motion. The Court noted that although the university argued that statute of repose and immunity issues were intertwined, and therefore entitled the university to immediate appeal, “it appears that the underlying issue concerns only a determination of the statute of repose to plaintiff’s tort claims arising under the Tort Claims Act.” The university’s argument was that it was entitled to sovereign immunity because the claim was barred by the statute of repose, and, therefore, “the underlying arguments for the defendant do not raise an issue of sovereign immunity in the traditional sense.” The Court went on to explain:

The only way immunity becomes an issue is if the statute of repose is applicable and has expired. Yet, if the statute of repose is applicable and has expired, the claim will be dismissed. Therefore, it is not necessary to address the issue of immunity. Thus, we ascertain no issue of sovereign immunity that would create a substantial right justifying an immediate appeal.

The Court of Appeals has addressed similar issues on previous occasions. We have regularly written about cases in which an appellant sought review of an interlocutory order and framed the issue as one that affected a substantial right or statutory right to immediate appeal, and the Court had to analyze if the true basis of the motion spawning the order sought to be appealed was something from which no right to immediate appeal existed. See here, here, here, and here. Additionally, in Atlantic Coast Conference v. University of Maryland, 230 N.C. App. 429, 51 S.E.2d 612 (2013), a case in which our firm was involved, the defendant moved to dismiss and argued that it was entitled to sovereign immunity based on the rule of comity (the deference one state’s court will give to the laws of another state and in particular, the immunity from suit that a defendant would enjoy in its home state). When the trial court denied the defendant’s motion, the defendant noticed an interlocutory appeal and argued that its motion was based on sovereign immunity and therefore the order denying that motion was immediately appealable. The Atlantic Coast Conference argued that the motion was truly based on comity, not immunity, and therefore was not immediately appealable. The Court of Appeals disagreed in that case, holding that because the defendant’s “underlying interest in asserting sovereign immunity is substantial, we will, with the aim of fostering beneficial relationships with our sister states and doing justice in order that justice may be done in return, accept jurisdiction of Defendants’ appeal pursuant to the authority conferred by N.C. Gen. Stat. §§ 1–277(a) and 7A–27(d).”

Finally, it is worth noting one other issue that the Foushee case potentially raises but that the Court of Appeals did not outwardly address: whether there is ever any right of immediate appeal from an interlocutory order of the Industrial Commission. The Court of Appeals has only “such appellate jurisdiction as the General Assembly may prescribe.” N.C. Const. art. IV, § 12(2). Yet there is no statute that authorizes an appeal from an interlocutory order of the Industrial Commission. While the Court of Appeals has addressed interlocutory appeals from the Industrial Commission before, it does not appear that in any of those instances a jurisdictional challenge was made. See, e.g., Multiple Claimants v. N.C. Dep’t of Health & Human Servs., 176 N.C. App. 278, 626 S.E.2d 666 (2006); Ledford v. Asheville Hous. Auth., 125 N.C. App. 597, 482 S.E.2d 544 (1997). And notably, in neither Ledford nor Multiple Claimants did the Court cite a statute that would give it jurisdiction over the interlocutory appeal from the Industrial Commission. Although the Foushee Court dismissed the appeal as impermissibly interlocutory, its subsequent discussion of the basis of the university’s motion (statute of repose versus sovereign immunity) suggests that the Court believed that under certain circumstances it may have had jurisdiction. But is that right?