Smith v. Parker
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA13-269 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 AARON A. SMITH, Plaintiff, v. Mecklenburg County No. 12 CVS 13805 WHITNEY SIMONS PARKER, Defendant. Appeal by plaintiff from order entered 8 October 2012 by Judge Yvonne Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 October 2013. Aaron A. Smith, pro se. No brief for defendant appellee. BRYANT, Judge. Plaintiff Aaron Smith appeals from the trial court s order limiting production of records subpoenaed by plaintiff and partially granting defendant s request for protective orders. -2For the reasons set forth below, we dismiss the appeal as interlocutory. On 29 August 2012, plaintiff filed a complaint asserting claims of breach of contract, quantum meruit, abuse of process and malicious prosecution, and violation of the North Carolina Fraudulent Transfers Act. The complaint stemmed from allegations that plaintiff had loaned defendant sums of money, and defendant failed to repay the loans. Defendant filed an answer denying the material allegations in the complaint and offering affirmative defenses. counterclaims seeking Additionally, defendant filed compensatory damages for intentional infliction of emotional distress, libel, and abuse of process. On 3 August 2012, defendant filed a motion to quash and for a protective order. subpoenas to Defendant stated that plaintiff had issued Wells Fargo, Verizon Wireless, several of defendant s current and former employers, as well as Waterford Square Apartments, Defendant argued confidential or the that lessor the privileged of subpoenas defendant s required information unreasonable, and procedurally defective. and apartment. disclosure were of oppressive, On 8 August 2012, plaintiff moved to dismiss defendant s motion. On 14 August 2012, plaintiff filed a subpoena seeking the financial records -3of Lyn Simons Parker, defendant s mother. Parker thereafter filed a motion to quash the subpoena and sought a protective order. this On 11 September 2012, plaintiff issued another subpoena, time Defendant seeking filed defendant s another appearance motion for a at a deposition. protective order. Plaintiff again moved to dismiss defendant s request. After hearing the various motions on 20 September 2012, the trial court denied plaintiff s motions to dismiss and ordered defendant to produce her Wells Fargo bank records, rental records with Waterford Square Apartments, and Verizon Wireless phone and text message records relating to the plaintiff. The trial court limited the time period of the records to 1 December 2010 to 1 October 2012. Defendant was also ordered to produce certain W-2 forms and tax records from 2010 to 2011. The trial court additionally ordered that any deposition of defendant by plaintiff be held at the office of defendant s attorney. Plaintiff appeals. _________________________ The threshold issue to consider is whether plaintiff s appeal is premature, and therefore, not properly before this Court. An order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the -4case but requires further action by the trial court in order to finally determine the entire controversy. N.C. Dept. of Transp. v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995) (citing Cagle v. Teachy, 431 S.E.2d 801, 803 (1993)). 111 N.C. App. 244, 247, This Court has stated [t]here are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) if the trial court s decision deprives the appellant of a substantial right which would be lost absent immediate review. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 141, 526 S.E.2d 666, 669 (2000) (quoting Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 burden S.E.2d of appellant 693, showing of a 695 this (1996). Court substantial [T]he that right the which appellant would the deprives order has the be jeopardized absent a review prior to a final determination on the merits. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). Here, plaintiff concedes that his appeal is interlocutory, but argues that the trial court s restrictions on discovery deprive him of substantial rights. Specifically, he contends the trial court s restrictions impair his ability to prosecute his -5claims and to defend against defendant s counterclaims. We are not persuaded. Discovery orders generally do not affect a substantial right which would be lost if the ruling were not reviewed before the final judgment. Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). However, our courts have recognized two exceptions to the rule against immediate appeal from discovery orders. The first exception is where the finding of contempt or other sanctions. orders include See Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (1976). second exception applies where a party a asserts a The statutory privilege which directly relates to the matter ordered to be disclosed. trial Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. court s order does here sanctions, nor any Thus, the trial court s does party not relate assert a to contempt statutory The or privilege. order does not affect a substantial right. Accordingly, because there was no final judgment or order in this case, demonstrating nor that has the plaintiff trial sustained court s order his is burden of immediately appealable, we hold that this appeal is premature and therefore, dismiss it as interlocutory. -6Appeal dismissed. Judges HUNTER, Robert C., and McCULLOUGH concur. Report per Rule 30(e).
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