Foushee v. Appalachian State Univ.Â
255 N.C. App. 468
| N.C. Ct. App. | 2017Background
- Belinda Foushee, as executor of Anneka Foushee’s estate, filed a wrongful-death claim under the North Carolina Tort Claims Act by submitting a Form T-1 to the NC Industrial Commission on April 7, 2016.
- Appalachian State University moved to dismiss on June 10, 2016, arguing the ten-year statute of repose barred the claim and thus the State lacked waiver of sovereign immunity; motion asserted under Rules 12(b)(6) and 12(b)(2).
- A deputy commissioner denied the motion on June 23, 2016. Appalachian sought immediate review by the Full Commission; the Commission chairman denied immediate review on July 22, 2016 (amended), concluding the order was interlocutory and defendant hadn’t shown a substantial right would be lost.
- Defendant moved for reconsideration (denied) and then filed an interlocutory appeal to the Full Commission on August 25, 2016; plaintiff moved to dismiss that interlocutory appeal.
- On November 28, 2016 the Full Commission dismissed defendant’s interlocutory appeal, reasoning the Tort Claims Act and Commission rules do not provide for immediate appeal from interlocutory orders; defendant appealed to the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Full Commission’s dismissal of an interlocutory appeal is immediately appealable to the Court of Appeals | The appeal is interlocutory and not appealable; dismissal proper. | The interlocutory orders affect a substantial right (personal jurisdiction/sovereign immunity/statute of repose) and are immediately appealable. | Dismissed: appeal is interlocutory and defendant failed to show a substantial right; appeal to Court of Appeals is not permissible. |
Key Cases Cited
- Goldston v. Am. Motors Corp., 326 N.C. 723 (1990) (general rule that interlocutory orders are not immediately appealable)
- Veazey v. City of Durham, 231 N.C. 357 (1950) (definition of interlocutory orders)
- Sharpe v. Worland, 351 N.C. 159 (1999) (explains limited exceptions for immediate appeal: finality as to fewer than all claims or when a substantial right is affected)