             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA17-213

                             Filed: 19 September 2017

From the North Carolina Industrial Commission, I.C. No. TA-25581

BELINDA FOUSHEE, Executor of the Estate of ANNEKA FOUSHEE, Plaintiff,

            v.

APPALACHIAN STATE UNIVERSITY, Defendant.


      Appeal by plaintiff from the order of the North Carolina Industrial Commission

entered 28 November 2016 by Commissioner Linda Cheatham for the Full

Commission. Heard in the Court of Appeals 24 August 2017.


      Wallace & Graham, P.A., by Edward L. Pauley, for plaintiff-appellee.

      Attorney General Joshua H. Stein, by Assistant Attorney General Christina S.
      Hayes, for defendant-appellant.


      ARROWOOD, Judge.


      Appalachian    State   University    (“defendant”)   appeals    from   the   Full

Commission’s dismissal of its appeal on 28 November 2016.            For the following

reasons, we dismiss defendant’s appeal.

                                I.       Background

      Belinda Foushee (“plaintiff”), as executor of the estate of her daughter Anneka

Foushee, commenced this wrongful death action against defendant on 7 April 2016

by filing a Form T-1 Affidavit with the North Carolina Industrial Commission (the
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                                   Opinion of the Court



“Commission”) under the North Carolina Tort Claims Act, N.C. Gen. Stat. § 143-291,

et seq. Defendant responded on 10 June 2016 by filing a motion to dismiss pursuant

to Rule 12(b)(6) and (2). Defendant asserted (1) the plaintiff failed to state a claim

upon which relief could be granted because the applicable ten year statute of repose

expired prior to plaintiff’s filing of the Form T-1; and (2) because the statute of repose

had expired, the State had not waived sovereign immunity in this case because, under

the Tort Claims Act, the State and its agencies are liable for negligence only under

circumstances where a private person would be liable. Plaintiff filed a response to

defendant’s motion to dismiss on 23 June 2016 and on the same day a deputy

commissioner entered an order denying defendant’s motion.

      On 8 July 2012, defendant gave notice of appeal seeking the immediate review

of the Full Commission. Defendant’s appeal was referred to the chairman for a ruling

on the right of immediate appeal. On 22 July 2016, the chairman entered an order,

and then an amended order, denying defendant’s request for immediate review of the

deputy commissioner’s 23 June 2016 order by the Full Commission. In the amended

order, the chairman explained that the deputy commissioner’s order was

interlocutory and although denial of a Rule 12(b)(2) motion based on sovereign

immunity constitutes an adverse ruling on personal jurisdiction and is immediately

appealable, in the instant case, “[d]efendant’s sovereign immunity argument is




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                                 Opinion of the Court



actually based on [the] statute of repose, not immunity from suit.” Thus, defendant

had not met its burden of showing it would be deprived a substantial right.

      Defendant filed a motion to reconsider the chairman’s order on 8 August 2016

and the chairman denied the motion by order filed 23 August 2016. Defendant then

filed notice of appeal from the chairman’s 22 July 2016 amended order to the Full

Commission on 25 August 2016.

      Plaintiff filed a motion to dismiss defendant’s appeal of the chairman’s

amended order to the Full Commission on 26 August 2016. Plaintiff argued the

appeal of the chairman’s amended order was interlocutory and should be dismissed.

On 28 November 2016, the Full Commission filed an order dismissing defendant’s

appeal. The Full Commission explained that “[n]either the State’s Tort Claims Act,

nor the Commission’s Tort Claims Rules provide for a right of immediate appeal to

the Full Commission from interlocutory Orders.”

      Defendant filed notice of appeal to this Court from the Full Commission’s

28 November 2016 order on 19 December 2016.

                                 II.    Discussion

      The sole issue on appeal is the Full Commission’s dismissal of defendant’s

interlocutory appeal. Plaintiff moved to dismiss defendant’s appeal as interlocutory.

We agree that the appeal is interlocutory and dismiss defendant’s appeal without

reaching the merits of the underlying issues below.



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      “Generally, there is no right of immediate appeal from interlocutory orders and

judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736

(1990). “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.” Veazey v. City of Durham, 231 N.C.

357, 361-62, 57 S.E.2d 377, 381 (1950) (citations omitted).

             [I]mmediate appeal of interlocutory orders and judgments
             is available in at least two instances. First, immediate
             review is available when the trial court enters a final
             judgment as to one or more, but fewer than all, claims or
             parties and certifies there is no just reason for delay. . . .
             Second, immediate appeal is available from an
             interlocutory order or judgment which affects a substantial
             right.

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (internal

citations and quotation marks omitted).

      Defendant argued below, and now argues on appeal, that although the

Commission’s orders are interlocutory, the orders affect a substantial right and

concern personal jurisdiction and are therefore immediately appealable. However,

the merits of the underlying orders are not on appeal to this Court. To be clear, the

only order on appeal to this Court is the Full Commission’s order that determined

there was no right of immediate appeal from an interlocutory decision in a case before

the Commission arising under the Tort Claims Act. As plaintiff asserts, this appeal




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is not an appeal of the merits of the deputy commissioner’s denial of defendant’s

motion to dismiss.

      The Full Commission’s order is clearly interlocutory as it is not a final

determination of plaintiff’s claims. Furthermore, defendant has not met its burden

to show that the Full Commission’s decision dismissing the appeal affects a

substantial right. Consequently, defendant’s appeal to this Court is dismissed as

interlocutory.

      Nevertheless, we take this opportunity to note that although defendant argues

in the underlying motions that the statute of repose and immunity issues are

intertwined and the appeal therefore affects a substantial right and implicates

personal jurisdiction, it appears the underlying issue concerns only a determination

of the application of the statute of repose to plaintiff’s tort claims arising under the

Tort Claims Act. Defendant even states in its brief that it is “entitled to sovereign

immunity in this claim for wrongful death because it is barred by the statute of repose.”

(Emphasis added). The underlying arguments for the defendant do not raise an issue

of sovereign immunity in the traditional sense. 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.



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                                  III.   Conclusion

      Because defendant’s appeal from the Full Commission’s 28 November 2016

order is interlocutory, we dismiss the appeal.

      DISMISSED.

      Judges HUNTER, Jr., and DILLON concur.




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