- The North Carolina Court of Appeals has rejected an appeal against Wake County in a class-action lawsuit stemming from 2021 peeping incidents at two county-owned prenatal clinics.
- Appellate judges agreed plaintiffs failed to follow the proper procedure for challenging a trial judge's decision dismissing the county government from the complaint.
- The suit stemmed from the discovery that a certified nurse assistant was secretly recording women using bathrooms at the Millbrook and Sunnybrook prenatal clinics in Raleigh.
The North Carolina Court of Appeals has dismissed an appeal against Wake County in a class-action lawsuit based on 2021 peeping incidents involving two county-owned prenatal clinics.
Appellate judges agreed the plaintiffs failed to follow the proper procedure when pursuing their case against the county government.
The case arose from the discovery in September 2021 that certified nurse assistant James Otis Perry was secretly recording women using bathrooms at the Millbrook and Sunnybrook prenatal clinics in Raleigh, according to the Appeals Court opinion released Wednesday.
A Wake County grand jury indicted Perry on 40 counts of felony secret peeping, along with additional counts of sexual exploitation of a minor. In January 2023, he pleaded guilty to “one count of installing or using a photo device, eighteen counts of felony secret peeping, and three counts of second-degree exploitation of a minor,” the Appeals Court opinion explained.
Nine days after the guilty plea, eight women and three spouses filed suit against Perry and the county. In September 2023, a trial judge dismissed the case against the county. Wake’s lawyers had argued that the county was protected by governmental immunity.
“Here, Plaintiffs sought relief against two Defendants — Defendant-Perry and Defendant-County — based on claims arising from a common set of facts,” Appeals Court Judge Jeff Carpenter wrote Wednesday. “The trial court dismissed the claims against Defendant-County without dismissing the claims against Defendant-Perry. Therefore, the trial court’s grant of Defendant-County’s motion to dismiss was a final judgment as to Defendant-County but not as to all parties. As a result, the Order is interlocutory.”
An ”interlocutory” order differs from a final judgment that would have ended the case. Most appeals arise from final court judgments.
“Because Plaintiffs appeal from an interlocutory order, it is their burden to sufficiently brief the issue of jurisdiction,” Carpenter wrote. “Given the trial court did not certify the Order for immediate review, Plaintiffs’ only route to immediate review is to assert that the Order affects a substantial right.”
“Accordingly, it is Plaintiffs’ burden to categorically assert that the challenged order affects a substantial right, supported by citation to applicable precedent,” Carpenter added. “Plaintiffs, however, do not meet their burden.”
“Although this appeal arguably involves issues of sovereign immunity and personal jurisdiction — issues that may affect a substantial right as a matter of law — Plaintiffs have incorrectly stated the Order from which they appeal is a ‘final judgment’ and that this Court has jurisdiction,” the Appeals Court opinion explained. “Additionally, Plaintiffs fail to cite to any precedent demonstrating that the challenged Order affected a substantial right.”
“In short, Plaintiffs not only fail to assert a substantial right, they do not even mention the interlocutory nature of their appeal,” Carpenter wrote. “Without at least a ‘categorical assertion that the issue is immediately appealable,’ Plaintiffs fail to meet their burden of properly requesting review from an interlocutory order.”
Judges Julee Flood and Michael Stading joined Carpenter’s opinion.
Stading added a concurring opinion “to further emphasize that Plaintiffs could provide our Court with appellate jurisdiction upon sufficiently asserting governmental or sovereign immunity as a substantial right in their brief.”
A 2018 precedent, Ballard v. Shelley, determined “that granting a government defendant’s motion to dismiss on sovereign immunity grounds affects a substantial right, just as denial does, and thus warrants immediate appellate review,” Stading wrote.
“Had Plaintiffs carried their burden in demonstrating appellate jurisdiction, as in Ballard, precedent would similarly bind us to hold that their interlocutory appeal impacted a substantial right for immediate appellate review,” he added.