As a defense attorney, I have been frustrated with what had been the law in North Carolina which was established in 2001 by the Court of Appeals which had ruled in a products liability case that a denial of a motion to dismiss a lawsuit (including a summary judgment motion) based on the assertion that a statute of repose had run could not be immediately appealed. That Court, in Lee v. Baxter, 556 S.E.2d 36 (N.C. App. 2001), had noted that:

An appeal is interlocutory “if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.” North Carolina law allows an immediate appeal from an interlocutory order only in limited circumstances. . . . [A] party may appeal an interlocutory order where the order affects a substantial right. A right is considered substantial if it “will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.”

Id. at 37 (citations omitted).

The defendant Ford argued that the denial of its motion for summary judgment based upon the products liability statute of repose affected a substantial right and was, therefore, immediately appealable. However, the Court rejected that reasoning, asserting that the denial of a motion for summary judgment is interlocutory, and not immediately appealable. It explained that “‘[t]he reason for this rule is to prevent fragmentary, premature and unnecessary appeals by permitting the trial court to bring the case to final judgment before it is presented to the appellate courts.’” However, Ford argued that the statute of repose gives a defendant a “vested right” not to be sued (with which I totally agreed). Unfortunately, the Court of Appeals rejected such argument, and it did not view a statute of repose as creating any entitlement to being free from being sued. Evincing no sympathy for the practical negative effects on a defendant who would need to endure the cost and interruptions of waiting until a lawsuit has ended in the trial court before obtaining relief in an appellate court, the Court of Appeals commented that “[t]he only loss Ford will suffer will be the time and expense of trial.” Id.

The Court of Appeals also added that because the North Carolina Supreme Court had held that a denial of a motion to dismiss based on a statute of limitations does not affect a substantial right and hence is not immediately appealable, it saw “no reason to treat a motion for summary judgment based on the statute of repose differently than a motion to dismiss based on the statute of limitations.” Id. at 38. I was surprised when I read that, because it seemed that the Court did not appreciate the difference between a statute of limitations and a statute of repose.

The Lee decision was subsequently followed numerous times by other Court of Appeals three-judge panels. The practical effect was that many defendants who were sued by plaintiffs whose claims were actually barred by a statute of repose ended up paying some money to plaintiffs to avoid the cost and inconvenience of litigating their cases to their end in the lower courts, including enduring a trial, that would be required before they could appeal an erroneous ruling by the trial court on the statute of repose defense.

It took the North Carolina Supreme Court over 24 years to correct what I (and other defense counsel) believe was an erroneous decision by the Court of Appeals in the Lee case. The case of Byrd v. Avco Corp., 927 S.E.2d 13 (N.C. 2026), decided a little more than two weeks ago, overruled Lee. The Byrd case involved the statute of repose in the General Aviation Revitalization Act, and although most defenses of a statute of repose involve the products liability statute of repose or the improvement to real property statute of repose, the Supreme Court’s comments and reasoning appearing in Byrd will apply to all statutes of repose. The Supreme Court held that a denial of a motion to dismiss based on a statute of repose can be immediately appealed.

Because of the significance of the Byrd case, I will set forth a lengthy quote from the decision:

. . . Lee is clearly wrong. Lee conflated statutes of repose and limitations because it fundamentally misunderstood the right conferred by a statute of repose. ”[A] statute of limitations is not the same as a statute of repose.” “Unlike a statute of limitations, a statute of repose ‘establishes a time period in which suit must be brought in order for the cause of action to be recognized.’”“Unlike statutes of limitations, which run from the time a cause of action accrues, statutes of repose create time limitations which are not measured from the date of injury.” And unlike statutes of limitations, which are “clearly procedural, affecting only the remedy directly and not the right to recover,” statutes of repose are “condition[s] precedent to the action itself.” “If the action is not brought within the specified period, the plaintiff literally has no cause of action.” Essentially, a “statute of repose creates an additional element of the claim itself which must be satisfied in order for the claim to be maintained.”

“[T]he repose serves as an unyielding and absolute barrier that prevents a plaintiff’s right of action even before his cause of action may accrue.” “For this reason we have previously characterized the statute of repose as a substantive definition of rights rather than a procedural limitation on the remedy used to enforce rights.” Put simply, when the statute of repose has expired, a defendant cannot be hailed into court to bear the burden and expense of trial. . . .

. . . Lee’s reasoning that a defendant’s right to raise the statute of repose defense would not be lost absent review “prior to a final judgment” because the defendant’s “only loss . . . w[ould] be the time and expense of trial,” is erroneous. . . . [T]he expiration of a statute of repose “shields a defendant entirely from having to answer for its conduct at all in a civil suit for damages.” And that shield is obviously “lost if a case is permitted to go to trial.” When a defendant is entitled to a statute of repose defense, that entitlement relieves the defendant from the burden of even having to come to court to defend itself, and that burden cannot be lifted retroactively by an appellate court following a trial and final judgment. Accordingly, we overrule Lee’s holding that an interlocutory order denying a statute of repose defense cannot support interlocutory jurisdiction.

Byrd, 2026 N.C. LEXIS 246, *17-23 (emphasis in original).             The North Carolina Supreme Court’s well-reasoned majority opinion (it was a 5-2 decision) has corrected what had been the law since 2001, and it provides the opportunity to individuals and companies who believe they have been sued on a claim that is barred by a statute of repose to obtain from the Court of Appeals recognition of their statute of repose defense without needing to endure the cost and interference with their lives and business by first going all the way through an unnecessary trial.