Branch Banking and Trust Co. v. Peacock Farms, Inc.: What this means for the trial attorney

In an action against several defendants, the Court just granted opposing counsel’s motion for summary judgment or motion to dismiss as to one but not all of the defendants.  There are a number of things going through your mind.  How am I going to deliver this news to the client?  What is my litigation strategy moving forward? How does this affect the overall likelihood of success?  Do I appeal the decision?  

The one thing that is probably not on your mind is – I better get the court to certify this matter for immediate appeal.  It may not even cross your mind when drafting or reviewing the order.  But it should.  Your failure to do so may be fatal to the appeal.   

As all trial attorneys know, there are two types of judgments those that are interlocutory and those that are final.  N.C. Gen. Stat. §1A-1, Rule 54(a).  Interlocutory judgments are those “not constituting a final resolution of the whole controversy,” are not typically immediately appealable.  BLACK’S LAW DICTIONARY 819 (7th ed. 1999).  There are two different ways that an interlocutory judgment may be immediately appealable.  Rule 54 allows a trial court to certify an interlocutory judgment for immediate appeal “if there is no just reason for delay…if it is so determine in the judgement” N.C. Gen. Stat. §1A-1, Rule 54.  In the alternative, N.C. Gen. Stat. §§ 1-277(a) and 7A-27(d)(1), permits an immediate appeal of an interlocutory judgment if the “trial court’s decision deprives the appellant of a substantial right which would be lost absent immediate review.”  N.C. Dep’t of Transp. V. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). 

In recent decision Branch Banking and Trust Company v. Peacock Farm, Inc., 368 N.C. 478, 780 S.E.2d 553 (Dec. 15, 2015), which affirmed the majority opinion in Court of Appeals decision ---N.C. App. ---, 772 S.E.2d 495 (2015), that sets forth formal procedural requirements for Rule 54 certifications.   In Peacock, approximately two years after the original interlocutory judgment, the appellant obtained an order certify the original order for immediate appeal pursuant to Rule 54(b).  The Court ultimately determined that “[n]either Rule 54(b) itself nor the cases interpreting it authorized such a retroactive attempt to certifying a prior order form immediate appeal in this fashion...  Rule 54(b) cannot be used to create appellate jurisdiction based on certification language that is not contained in the body of the judgment itself from which appeal is being sought. “ Peacock, 772 S.E.2d at 500).   

From recent decisions of the Court of Appeals, it appears that the Court is requiring strict compliance. Singer v. Stark, et al., No. COA15-1168, slip op. at 3 (N.C. App. Oct. 4, 2016).   Do not be caught off guard and take a potentially fatal procedural blunder.  Take the following steps to ensure you miss this pitfall: 1) at the hearing ask the trial court to certify the judgment; 2) include the certification in the trial court’s judgment; and 3) if the certification was not included in the original judgment amend the original judgment to include the certification for immediate appeal.    It is imperative that you do not attempt to have a subsequent order certify the final judgment as in Peacock.    

It is important to remember that the ultimate decision regarding the interlocutory nature of the appeal is a matter for the appellate court not the trial court.  First Alt. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242,247,507 S.E.2d 56, 60 (1998).   Therefore, the ability to confer jurisdiction is solely a decision of the appellate court.  Just because the trial court certifies the judgment doesn’t mean that the appellate division will confer jurisdiction.  To insure that you side step this potential pitfall, make sure that the Rule 54 certification is done in accordance with the Peacock decision and that the certification is included in the original jurisdiction – if not, you will be forced to argue that an substantial right is affected to save the appeal.   

Just one more thing for a trial attorney to remember….