Gilbert v. North Carolina State Bar

Justice HUDSON

dissenting.

Because I conclude that the North Carolina State Bar has failed to show that this interlocutory appeal adversely affects a substantial *93right, I would hold that the Court of Appeals correctly dismissed defendant’s appeal and that discretionary review was improvidently allowed. Therefore I respectfully dissent.

Without citing authority, the majority concludes that “defendant’s right to carry out its duties to investigate and [discipline lawyers] is substantial.” The majority then acknowledges that the mere fact that defendant has been enjoined is not deprivation of a substantial right, but nonetheless concludes that “because the trial court’s permanent injunction may prevent defendant from executing its statutory duties while plaintiff pursues an improperly pleaded action, an injury arises.”

The only authority in support of this latter proposition is a citation to a 1977 opinion from the Court of Appeals concerning an injunction against the North Carolina Board of Transportation, barring it from removing a billboard owned by the plaintiff. Freeland v. Greene, 33 N.C. App. 537, 540, 235 S.E.2d 852, 854 (1977). While the Court of Appeals there stated that it was considering the Board’s interlocutory appeal of the injunction because it “adversely affect[ed] important rights in connection with the performance by them of [statutory] duties,” it provided no explanation. As such the Freeland opinion, which is not binding on this Court, gives little guidance on the analysis of this issue. The court’s holding then rested on the conclusion that “plaintiff failed to exhaust his administrative remedies, [such that] this action should have been dismissed.” Id. at 544, 235 S.E.2d at 856.

Here the Court of Appeals has described the substantial right at stake as defendant’s ability to “promulgate [] rules of professional conduct to protect the public from unethical behavior by attorneys. . . .[,] conduct hearings and impose penalties in disciplinary matters.” As noted by the court in its decision below, “defendant fails to articulate how delaying its appeal until the case is resolved will jeopardize its ability to enforce the Rules of Professional Conduct. Nor does defendant identify any circumstance making review of the particular claim, which alleges that plaintiff mishandled $290 in 1998, of such urgency that the appeal cannot be delayed,” until the issue of damages has been determined. Gilbert v. N.C. State Bar, 180 N.C. App. 690, 639 S.E.2d 143, 2006 WL 3718000, at *3 (2006) (unpublished).

Likewise, my review finds no stated explanation of how the trial court’s order enjoins defendant’s ability to discharge its statutory *94duties in general, as opposed to pursuing its specific complaint against plaintiff. Neither does the trial court’s order contain any broad prohibition against defendant carrying out its statutory duties. Instead, the trial court enjoined defendant from continuing its prosecution of plaintiff in one specific action to recover $290 in client funds allegedly misused by plaintiff. In so ordering, the trial court found defendant’s pursuit of that action to be “but the latest in a series of unremitting, increasingly disturbing, and, ultimately, unlawful acts and practices that have been designed and intended by the State Bar to . . . punish and retaliate against the Plaintiff. . . and otherwise harass, menace and intimidate the Plaintiff.”

For those reasons, as well as a number of other fact-specific bases discussed m its seventy-seven page order, the trial court granted summary judgment to plaintiff on his claims for vindictive prosecution and violations of his rights to substantive and procedural due process, as related only to the most recent action brought by defendant against him. In addition, the trial court permanently enjoined defendant from “prosecuting or proceeding further with the prosecution of the claims and charges asserted in the case” and from publishing in any form “the past, present, or future pendency of the disciplinary action,” specified by file number, against plaintiff. This language very precisely targets and enjoins only defendant’s actions against plaintiff and in no way impedes or restricts its ability to discharge its general statutory duties.

More importantly, defendant has failed to articulate what injury will result from any deprivation of a substantial right, if it is not corrected now, prior to final judgment as to all claims and controversies between the parties. See, e.g., Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (“ ‘Essentially a two-part test has developed — the right itself must be substantial and the deprivation of that substantial right must potentially work injury ... if not corrected before appeal from final judgment.’ ” (quoting Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (alteration in original))); Veazey v. City of Durham, 231 N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950) (“A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.” (citations omitted)); see also Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994) (“It is not the duty of this Court to construct arguments for or find support for appellant’s right to appeal from an interlocutory order; instead, the appellant has the burden of show*95ing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits.” (citations omitted)).

It is also noteworthy that the trial judge here explicitly declined to certify this interlocutory appeal for our immediate review pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure. See N.C.G.S. § 1A-1, Rule 54(b) (2007); Gilbert, 2006 WL 3718000, at *2 (“The defendant asked the court to certify the case for immediate appellate review, and the trial court expressly denied this request....”). Furthermore, this is not a case in which the order has deprived the appellant of one of its substantive legal claims.Nee, e.g., Charles Vernon Floyd, Jr. & Sons, Inc. v. Cape Fear Farm Credit, ACA, 350 N.C. 47, 49, 51, 510 S.E.2d 156, 158, 159 (1999) (holding that the trial court’s election-of-remedies order “involved the merits and affected the judgment” because it “deprived [the] plaintiffs of one of their claims”), overruled in part on other grounds by Dep’t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 710 (1999). Defendant could still raise its issues pertaining to the trial court’s order after the hearing on damages. Finally, defendant does not face the possibility here of inconsistent verdicts or outcomes at trial. See, e.g., Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982) (allowing an interlocutory appeal due to “the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.”).

Instead, the sole effect of our dismissing this appeal as interlocutory- — beyond defendant perhaps having to wait for any recovery— would be simply to delay a determination of the substantive merits of defendant’s arguments until appeal after entry of an order on damages. Simple delay does not amount to a deprivation or impairment of a substantial right; rather, preventing such delays underpins our general reluctance to hear interlocutory appeals. See Veazey, 231 N.C. at 363, 57 S.E.2d at 382 (“There is no more effective way to procrastinate the administration of justice than that of bringing cases to an appellate court piecemeal through the medium of successive appeals from intermediate orders.”); State ex rel. Edmisten v. Fayetteville St. Christian Sch., 299 N.C. 351, 358, 261 S.E.2d 908, 913 (“The statutes and rules governing appellate review are more than procedural niceties. They are designed to streamline the judicial process, to forestall delay rather than engender it.”), appeal dismissed, 449 U.S. 807, 66 L. Ed. 2d 11 (1980). Such a holding would also be consistent with past decisions of this Court. See, e.g., id. at 355, 261 S.E.2d at 911 (dis*96missing as interlocutory an appeal from a denial of a motion to dismiss and the grant of a preliminary injunction in part because the denial of a motion to dismiss “merely serves to continue the action then pending. No final judgment is involved, and the disappointed movant is generally not deprived of any substantial right which cannot be protected by timely appeal from the trial court’s ultimate disposition of the entire controversy on its merits.”).

The majority’s holding here goes beyond our long-standing jurisprudence describing the types of substantial rights, and possible impairment of those rights, that justify appellate review of an interlocutory order. The course it sets potentially opens floodgates that should remain closed. As such, I respectfully dissent.