NO. COA06-1249
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:
CONTRACTOR NOT STATE AGENT
[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.
Dismissed.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
Footnote: 1