Substantial Rights: The Right To An Interlocutory Appeal When The Issues Of Liability And Damages Are Bifurcated

You've certainly been caught in the gap between a trial court proceeding that isn't completely over, and an interlocutory appeal. One side wants to proceed ahead in the trial court, but the other wants a reversal in the appellate court. Can the trial court proceed?

The Business Court entered an Order today in the case of Land v. Land which involved exactly this situation.  The Court had bifurcated the trial on liability and damages, and the liability phase had ended with a verdict for the Plaintiffs.  The Defendants, wanting to avoid the damages phase of the trial, filed an interlocutory appeal.  The Plaintiffs objected, pushing for a resolution of the damages issue in the Business Court before heading to the Court of Appeals.

The issue was whether the Defendants would be deprived of a "substantial right" which would be "lost absent immediate review."  The authority to make this decision rests initially with the trial court, and the Court of Appeals ultimately makes the determination whether it will hear an appeal.

Judge Tennille concluded that the Defendants' appeal did not affect a substantial right permitting an immediate appeal.  He held:

In this case, the only right affected by denial of the interlocutory appeal would be the Defendants’ right to avoid the second phase of the bifurcated proceedings. While this may be inconvenient for the Defendants, it clearly does not trigger the substantial right provision for interlocutory appeals, since “[t]he avoidance of a rehearing or trial is not a substantial right.” . . .  There is no possibility of inconsistent verdicts present and no risk of an irreparable loss of any substantial right if the Defendants must await final judgment before pursuing their appeal. In short, the Court concludes as a matter of law that the Defendants’ appeal does not affect a substantial right.

The Court noted that it had the discretion to stay the case pending the conclusion of the appeal, but it declined to do so.  Judge Tennille observed that the bifurcation of the issues had come at the Defendants' request, over the Plaintiffs' objection, and that there would be a long delay before a final conclusion if he were to stay the case.  He stated:

The jury found liability.  It is time to complete damage discovery and have a trial on damages so that the appellate courts can review the case as a whole rather than in a piecemeal process that could result in the case lasting a decade.  It would be manifestly unjust if this case did not move forward.

The successful result for the Plaintiffs in the liability phase of the trial was the product of the great work of my partners, Reid Phillips and Jennifer Harrod.

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