                IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 438A15

                               Filed 21 December 2016


 HANESBRANDS INC.
               v.

 KATHLEEN FOWLER


        Appeal pursuant to N.C.G.S. §§ 7A-27(a) and 7A-45.4(e) from an order entered

on 5 November 2015 by Judge James L. Gale, Chief Special Superior Court Judge for

Complex Business Cases appointed by the Chief Justice pursuant to N.C.G.S. § 7A-

45.4, in Superior Court, Forsyth County. Heard in the Supreme Court on 31 August

2016.


        Constangy, Brooks, Smith, & Prophete, LLP, by Robin E. Shea and Jill S.
        Stricklin, for plaintiff-appellee.

        Law Office of David Pishko, P.A., by David Pishko, for defendant-appellant.


        JACKSON, Justice.


        In this case we consider whether defendant Kathleen Fowler may appeal an

interlocutory order of the North Carolina Business Court overruling her opposition

to designation of this case as a mandatory complex business case. We conclude that

defendant has failed to show that this order affects a substantial right as required for

appeal of an interlocutory order pursuant to N.C.G.S. § 7A-27(a). Accordingly, we

dismiss defendant’s appeal.
                           HANESBRANDS INC. V. FOWLER

                                  Opinion of the Court



      On 20 August 2015, plaintiff Hanesbrands Inc. filed a complaint in Superior

Court, Forsyth County alleging that defendant breached five different stock grant

agreements that she entered into during her employment with plaintiff. Plaintiff

seeks to recover monetary damages of $462,366—the alleged value of certain of its

stock units and options granted to defendant pursuant to those agreements. That

same day, plaintiff filed a Notice of Designation of its case as a mandatory complex

business case pursuant to N.C.G.S. § 7A-45.4(a) on the basis that the case involved

both “the law governing corporations” and a dispute “involving securities.” The

designation received preliminary approval from the Chief Justice of the Supreme

Court of North Carolina on 21 August 2015. See N.C.G.S. § 7A-45.4(f) (2015).


      Defendant filed an opposition to the designation on 23 September 2015, which

was overruled by order of Judge James L. Gale, Chief Special Superior Court Judge

for Complex Business Cases, who was assigned to the case. On 12 November 2015,

after filing an answer to plaintiff’s original complaint, defendant appealed the

Business Court’s order to this Court pursuant to N.C.G.S. §§ 7A-45.4(e) and 7A-27(a).

Plaintiff argues that this Court should dismiss defendant’s appeal because the

Business Court’s order is interlocutory and defendant failed to show that the order

affects a substantial right. We agree.




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                                    Opinion of the Court



      When a party disagrees with a Business Court Judge’s ruling on an opposition

to the designation of a case as a mandatory complex business case, “the party may

appeal in accordance with G.S. 7A-27(a).” N.C.G.S. § 7A-45.4(e) (2015). According

to section 7A-27(a):

             Appeal lies of right directly to the Supreme Court in any of
             the following cases: . . .
                       (3) From any interlocutory order of a Business
                           Court Judge that does any of the following:
                          a. Affects a substantial right.
                          b. In effect determines the action and prevents
                             a judgment from which an appeal might be
                             taken.
                          c. Discontinues the action.
                          d. Grants or refuses a new trial.

Id. § 7A-27(a) (2015).


      “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, 362, 57 S.E.2d 377, 381 (1950) (citing Johnson v. Roberson, 171 N.C. 194, 88 S.E.

231 (1916)). To appeal from an interlocutory order, the appellant must show that the

order affects a “substantial right which he might lose if the order is not reviewed

before final judgment.” City of Raleigh v. Edwards, 234 N.C. 528, 530, 67 S.E.2d 669,

671 (1951) (citations omitted). “[A]n appeal from an interlocutory order will be

dismissed as fragmentary and premature unless the order affects some substantial


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                                      Opinion of the Court



right and will work injury to appellant if not corrected before appeal from final

judgment.” Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736

(1990) (quoting Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975)).

              “It is the appellant’s burden to present appropriate
              grounds for . . . acceptance of an interlocutory appeal, . . .
              and not the duty of this Court to construct arguments for
              or find support for appellant’s right to appeal[.]” Where the
              appellant fails to carry the burden of making such a
              showing to the court, the appeal will be dismissed.

Johnson v. Lucas, 168 N.C. App. 515, 518, 608 S.E.2d 336, 338 (citation omitted)

(quoting Thompson v. Norfolk S. Ry. Co., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401

(2000) (second and third alterations in original)), aff’d per curiam, 360 N.C. 53, 619

S.E.2d 502 (2005).       Similarly, in appeals from interlocutory orders, the North

Carolina Rules of Appellate Procedure require that the appellant’s brief contain a

“statement of the grounds for appellate review,” which must allege “sufficient facts

and argument to support appellate review on the ground that the challenged order

affects a substantial right.” N.C. R. App. P. 28(b)(4). “The appellants must present

more than a bare assertion that the order affects a substantial right; they must

demonstrate why the order affects a substantial right.” Hoke Cty. Bd. of Educ. v.

State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009) (discussing N.C. R. App.

P. 28(b)).1



       1  Although opinions of the Court of Appeals are not binding on this Court, the wider
scope of the Court of Appeals’ jurisdiction has allowed it to develop a more robust body of case
law regarding interlocutory appeals.

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                            HANESBRANDS INC. V. FOWLER

                                   Opinion of the Court



      We have determined that a “substantial right is ‘a legal right affecting or

involving a matter of substance as distinguished from matters of form: a right

materially affecting those interests which [one] is entitled to have preserved and

protected by law: a material right.’ ” Gilbert v. N.C. State Bar, 363 N.C. 70, 75, 678

S.E.2d 602, 605 (2009) (alteration in original) (quoting Oestreicher v. Am. Nat’l Stores,

Inc., 290 N.C. 118, 130, 225 S.E.2d 797, 805 (1976)).                Recognizing that

“the ‘substantial right’ test for appealability of interlocutory orders is more easily

stated than applied,” we have determined that it is “usually necessary to resolve the

question in each case by considering the particular facts of that case and the

procedural context in which the order from which appeal is sought was entered.”

Waters v. Qualified Pers., Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).


      In her appeal from the Business Court’s interlocutory order in this case,

defendant alleges that the designation of her case as a mandatory complex business

case affects a substantial right. Specifically, defendant argues that requiring her “to

defend a case filed against her by a large, public corporation in a special court

established primarily for disputes between businesses” denies her the substantial

right to “have this matter heard in the same manner as ordinary disputes involving

ordinary citizens.” Defendant also argues that the “Business Court Judge’s decision

in this action is akin to the denial of a motion for change of venue.” Although

defendant appears to suggest that she may suffer some unspecified prejudice from

this case being tried in Business Court, she has not explained how she would be

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                            HANESBRANDS INC. V. FOWLER

                                  Opinion of the Court



prejudiced. She has not identified a specific “material right” that she would lose if

the order is not reviewed before final judgment nor explained how the order in

question would “work injury” to her if not immediately reviewed. See Gilbert, 363

N.C. at 75, 678 S.E.2d at 605; Goldston, 326 N.C. at 726, 392 S.E.2d at 736.

Furthermore, the General Statutes provide that if a case is not “designated a

mandatory complex business case” it may still be designated as “a discretionary

complex business case pursuant to Rule 2.1 of the General Rules of Practice for the

Superior and District Courts.” N.C.G.S. § 7A-45.4(f). Rule 2.1 affords the Chief

Justice wide latitude to designate a case as a complex business case. Specifically,

             [t]he Chief Justice may designate any case or group of cases
             as (a) “exceptional” or (b) “complex business.” A senior
             resident superior court judge, chief district court judge, or
             presiding superior court judge may ex mero motu, or on
             motion of any party, recommend to the Chief Justice that
             a case or cases be designated as exceptional or complex
             business.

Gen. R. Pract. Super. & Dist. Cts. 2.1(a), 2016 Ann. R. N.C. 3 (emphasis added). We

note that in Delaware, another state having a specialized business court, the

Administrative Directive establishing that state’s Complex Commercial Litigation

Division specifically excludes certain types of cases from designation, including “any

case involving an exclusive choice of court agreement . . . where the agreement relates

to an individual or collective contract of employment.”       James T. Vaughn, Jr.,

President J., Del. Super. Ct., Administrative Directive of the President Judge of the

Superior Court of the State of Delaware No. 2010-3: Complex Commercial Litigation


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                            HANESBRANDS INC. V. FOWLER

                                   Opinion of the Court



Division 1-2 (2010). In contrast, neither our statute nor Rule 2.1 create any such

exclusions for cases involving individuals or for specific classes of cases. Merely

asserting a preference for a forum other than the Business Court absent a specific,

legal entitlement to an exclusion from designation is insufficient to support

defendant’s contention that this matter was analogous to a venue change and is

therefore immediately appealable. Consequently, we conclude that defendant has

not demonstrated that the Business Court’s interlocutory order is immediately

appealable. Accordingly, we dismiss defendant’s appeal.


      DISMISSED.


      Chief Justice MARTIN and Justice EDMUNDS did not participate in the

consideration or decision of this case.




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