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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1249


Filed: 5 June 2007

                            Mecklenburg County
v .                         No. 06 CVS 4849


    Appeal by defendant from an order entered 6 July 2006 by Judge Jesse B. Caldwell, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 April 2007.

    Alston & Bird, LLP, by Thomas G. Walker and Michael P. Kenny, pro hac vice, for plaintiff-appellees.

    Smith, Anderson, Blount, Dorsett, Mitchell and Jernigan, LLP, by Mark A. Ash and J. Mitchell Armbruster, for defendant.

    BRYANT, Judge.

    Electronic Data Systems Corporation (defendant/EDS) appeals from an order entered 6 July 2006 denying their motion to dismiss a lawsuit filed by Bio-Medical Applications of North Carolina, Inc., Bio-Medical Applications of Fayetteville, Inc., and Bio- Medical Applications of Clinton, Inc. (plaintiffs/Bio-Medical). For the reasons stated below, we dismiss this appeal.
     Plaintiffs provide dialysis services for patients who suffer from End Stage Renal Disease. Plaintiffs are Medicaid-approvedmedical service providers in North Carolina. Defendant has contracted with the North Carolina Department of Human Resources (NCDHR) to process Medicaid claims such as those submitted by plaintiffs. NCDHR is responsible for the management of the North Carolina Medicaid program. Plaintiffs allege that defendant mismanaged the Medicaid claims plaintiffs have submitted and that defendants failed to properly process and pay claims that were timely and validly submitted.
    Plaintiffs filed this civil action on 7 March 2006, alleging tortious interference with contract, negligent misrepresentation, unfair and deceptive trade practices and breach of contract. On 5 May 2006, defendants filed a motion to dismiss this action on the grounds that plaintiff failed to exhaust administrative remedies or, in any event, defendants raised the defense of sovereign immunity. On 7 July 2006 the trial court denied defendant's motion to dismiss. Defendant appeals.


    The dispositive issue before this Court is whether this appeal is from an interlocutory order that does not affect a substantial right of defendants. This Court has held that an interlocutory order is immediately appealable if:
        (1) the order is final as to some claims or parties, and the trial court certifies pursuant to N.C.G.S. § 1A-1, Rule 54(b) that there is no just reason to delay the appeal, or (2) the order deprives the appellant of a substantial right that would be lost unless immediately reviewed.
Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 713, 582 S.E.2d 321, 323 (2003) (citations and quotations omitted). Here, the trial court did not provide Rule 54(b) certification. Therefore, defendants are entitled to pursue this appeal only if the order deprived them of a substantial right that would be lost if we dismissed their appeal.
    “A right is substantial only if it will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.” Banner v. Hatcher, 124 N.C. App. 439, 442, 477 S.E.2d 249, 251 (1996) (quotation and citation omitted). The North Carolina Rules of Appellate Procedure also mandate that, “[W]hen an appeal is interlocutory, the statement [of the grounds for appellate review] must contain 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). Further, “[i]t is the appellant's burden to present appropriate grounds for this Court's 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[.]” Thompson v. Norfolk & Southern Ry., 140 N.C. App. 115, 121, 535 S.E.2d 397, 401 (2000) (citations and quotation marks omitted). “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, aff'd per curiam, 360 N.C. 53, 619 S.E.2d 502 (2005).    Defendants argue they are entitled to the sovereign immunity defense as a basis for the substantial right lost if they are not allowed to immediately appeal. However, if a defendant is not entitled to claim the defense of sovereign immunity, then the defendant is not deprived of a substantial right and no immediate appeal will be allowed. See Knighten v. Barnhill Contr. Co., 122 N.C. App. 109, 113-14, 468 S.E.2d 564, 566 (1996). The North Carolina Department of Human Resources and defendant entered into a written agreement, signed by both parties, on 23 January 1989. The contract specifically establishes that defendant is an independent contractor:
[EDS] and its subcontractors, if any, and the agents, officers, and employees of the Contractor or any subcontractor, in the performance of this contract shall act as independent contractors and not as officers or employees of the State. It is further understood that this contract shall not be construed as a partnership or joint venture between the contractor or any subcontractor and the State Agency.

(Emphasis added). Defendant is a private corporation and is not entitled to invoke the defense of sovereign immunity.   (See footnote 1)  See Knighten, 122 N.C. App. at 113, 468 S.E.2d at 566 (dismissing the appeal on the grounds that there is “no authority in this State which recognizes a contractor's right to assert governmentalimmunity in a negligence claim which arises out of the performance of a contract with the State. Accordingly, the trial court's denial of [defendant's] motion . . . did not deprive defendant of a substantial right absent an immediate appeal, and [defendant's] premature appeal must be dismissed.”). Defendant also cites improper venue   (See footnote 2)  and failure to exhaust administrative dispute resolution processes   (See footnote 3)  as additional substantial rights that are affected. However, we find defendant's arguments to be unpersuasive. Defendants have not met their burden to present appropriate grounds for us to accept review of an interlocutory appeal and we find no substantial right requiring such review. This appeal is dismissed.
    Judges STEELMAN and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    We find defendant's sovereign immunity argument inapplicable as they cite to Smith v. Phillips, 117 N.C. App. 378, 451 S.E.2d 309 (1994) (upholding the trial court's denial of the sheriff's motion to dismiss based upon governmental immunity where the county waived its immunity from tort liability to the extent of its insurance).
Footnote: 2
    Defendant argues improper venue is a substantial right and cites Gardner v. Gardner, 300 N.C. 715, 719, 268 S.E.2d 468, 471 (1980) (“a right to venue established by statute is a substantial right” (emphasis added)).
Footnote: 3
    Defendant argues plaintiff's failure to exhaust administrative dispute resolution processes is a substantial right and cites to Cox v. Dine-A-Mate, Inc., 129 N.C. App. 773, 501 S.E.2d 353 (1998) (affirming the trial court's denial of appellant employer's motion to dismiss appellee employee's action where the forum selection clause was the product of the parties unequal bargaining power).

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