# Hoke County Board of Education v. State

> Court of Appeals of North Carolina · July 21, 2009 · 198 N.C. App. 274

URL: https://www.frixlaw.com/law-library/cases/9852838

## Case

- **Full name:** HOKE COUNTY BOARD OF EDUCATION, Et Al, Plaintiffs, and ASHEVILLE CITY BOARD OF EDUCATION, Et Al, Plaintiff-Intervenors v. STATE OF NORTH CAROLINA; STATE BOARD OF EDUCATION, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** July 21, 2009
- **Citations:** 198 N.C. App. 274; 679 S.E.2d 512; 2009 N.C. App. LEXIS 1178
- **Precedential status:** Published
- **Opinion:** Concurrence by Stephens
- **Judges:** Jackson, Stroud, Stephens
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852838

## How later opinions describe it (automated extraction)

- rejecting the argument that the trial court erred in holding that the private attorney general doctrine was inapplicable and setting forth, “as there is no legislative authority for the private attorney general *74 doctrine, ■ plaintiffs’ argument must fail”
- holding that order leaving open issue whether costs should be awarded was “interlocutory in nature” and appeal, therefore, was not properly before Court
- discussing N.C. R. App. P. 28(b)

## Opinion text

STEPHENS, Judge,
concurring.
I concur completely with the majority’s opinion that the trial court correctly denied Plaintiffs’ motion for attorneys’ fees. However, *284 because I believe that our review of this appeal is mandatory, and, thus, that we need not have invoked our power pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to hear this appeal, I write separately to concur in the result only.
The order of the superior court denying Plaintiffs’ motion for attorneys’ fees did not dispose of all the claims in the case, making it interlocutory. See Veazey v. Durham, 231 N.C. 357, 362 , 57 S.E.2d 377, 381 (1950) (“An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.”) Ordinarily, an interlocutory order is not immediately appealable. Liggett Group v. Sunas, 113 N.C. App. 19, 23 , 437 S.E.2d 674, 677 (1993). However, an interlocutory order is immediately appealable in at least two instances: first, pursuant to N.C. Gen. Stat. §§ 1-277 and 7A-27(d), an immediate appeal may be taken from an interlocutory order which affects a substantial right. DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583, 585 , 500 S.E.2d 666, 668 (1998). Second, pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), in an action involving multiple parties or multiple claims, if the trial court enters a final judgment as to a party or a claim and certifies there is no just reason for delay in reviewing such judgment, that judgment is immediately appealable. Id.
The trial court’s denomination of its decree as a “final judgment” 2 does not make it so if it is not such a judgment and, thus, this Court must initially determine if the Rule 54(b) certification is proper. Tridyn Indus., Inc. v. American Mut. Ins. Co., 296 N.C. 486, 491 , 251 S.E.2d 443, 446 (1979). However, where the trial court’s judgment is final, “[t]he rule provides, ‘Such judgment shall then be subject to review by appeal....’” DKH Corp., 348 N.C. at 585 , 500 S.E.2d at 668 (quoting N.C. Gen. Stat. § 1A-1, Rule 54(b)). Accordingly, the North Carolina Supreme Court held in DKH Corp. that “this language requires the appellate court to hear the appeal.” Id. (emphasis added); see also Sharpe v. Worland, 351 N.C. 159, 162 , 522 S.E.2d 577, 579 (1999) (“When the trial court certifies its order for immediate appeal under Rule 54(b), appellate review is mandatory.”).
In Martin Marietta Techs. v. Brunswick Cty., 126 N.C. App. 806 , 487 S.E.2d 145 , cert. granted, 347 N.C. 400 , 494 S.E.2d 413 (1997), rev’d and remanded, 348 N.C. 688 , 500 S.E.2d 665 (1998), the trial *285 court granted summary judgment in favor of plaintiff on four of plaintiffs eight claims and certified the order for immediate review pursuant to Rule 54(b). On appeal, this Court acknowledged the Rule 54(b) certification, but stated,
Nevertheless, it is the duty of this Court to determine whether an appeal is interlocutory. See Estrada v. Jaques, 70 N.C. App. 627, 640 , 321 S.E.2d 240, 249 (1984) (“[R]uling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.”)[.] Thus, a certification by a trial court is still reviewable by this Court on appeal.
Id. at 809, 487 S.E.2d 146 . In a unanimous opinion, this Court dismissed defendant’s appeal, explaining, “After reviewing the record, we fail to see how any substantial right of the [defendant] has been affected by the trial court’s grant of summary judgment.” Id. at 809 , 487 S.E.2d 147 .
The North Carolina Supreme Court granted plaintiff’s petition for discretionary review as to the following issue: “Does the Rule 54(b) certification contained in the trial court’s June 11, 1996 order together with a final determination on [plaintiff’s] First through Fourth Causes of Action confer appellate jurisdiction pursuant to Rule 54(b)?” Id., 347 N.C. at 400 , 494 S.E.2d at 413 . In accordance with the Supreme Court’s decision in DKH Corp., the Supreme Court reversed this Court’s decision, and remanded the case to this Court to hear the appeal and decide the case on its merits. Id., 348 N.C. at 688, 500 S.E.2d at 665.
In the present case, the trial court’s order denying Plaintiffs’ motion for attorneys’ fees decided the issue of attorneys’ fees as to all the parties, leaving nothing more to be determined between them on that issue. Thus, the trial court’s order was a “final judgment” as to the attorneys’ fees issue. Furthermore, pursuant to Rule 54(b), the trial court certified that “there is no just reason for delay” of an appeal of that issue. Accordingly, as mandated by the North Carolina Supreme Court’s decisions in DKH Corp. and Martin Marietta Techs., I believe we are required to hear Plaintiff’s appeal and it is unnecessary for Plaintiffs to demonstrate that this interlocutory appeal affects a substantial right.
For these reasons, I would not inquire into whether the trial court’s order affected a substantial right, nor would I invoke Rule 2 to hear this appeal.
. “A final judgment is one which disposes of the cause as to all the parties, leaving nothing to be determined between them[.]” Cagle v. Teachy, 111 N.C. App. 244, 246-47 , 431 S.E.2d 801, 803 (1993).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852838. Public record. Not legal advice.