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MYERS v. MUTTON
Factual and Procedural Background
This appeal arises from a medical malpractice action filed by plaintiff Kenneth H. Myers, Jr. in February 2000, alleging negligence by defendant Dr. Thomas P. Mutton in the treatment of plaintiff's appendicitis. Plaintiff dismissed claims against all other defendants, leaving Dr. Mutton as the sole defendant on appeal. Defendant served interrogatories seeking extensive information including expert witnesses, medical records, and damages. Plaintiff responded with general objections but did not specifically object to individual requests nor file a motion for protective order. Plaintiff produced some but not all requested documents. Defendant filed a motion to compel discovery, granted by the trial court on October 30, 2000, ordering plaintiff to fully respond and produce documents by November 18, 2000. Plaintiff filed supplemental answers reiterating general objections and produced some additional records. In April 2001, defendant moved for sanctions under N.C.G.S. 1A-1, Rule 37, and on May 23, 2001, the trial court sanctioned plaintiff for failure to comply fully with the discovery order, imposing monetary sanctions on plaintiff's counsel and ordering compliance by July 13, 2001. Plaintiff appeals from this sanctions order.
Legal Issues Presented
- Whether the trial court's order sanctioning plaintiff for failure to comply with discovery is appealable as a final order or interlocutory order.
- Whether the order for sanctions affects a substantial right that justifies immediate appellate review.
- Whether the trial court properly certified the sanctions order for immediate appeal under N.C.G.S. § 1A-1, Rule 54(b).
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Yang v. Three Springs, Inc, 142 N.C. App. 328, 542 S.E.2d 666 (2001) | Interlocutory orders do not dispose of the case and are generally not appealable. | The court used Yang to confirm that the sanctions order was interlocutory because the case had not yet gone to trial and did not dispose of the entire controversy. |
| Stafford v. Stafford, 133 N.C. App. 163, 515 S.E.2d 43 (1999), aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999) | Appellate courts must dismiss appeals if there is no right of appeal. | The court cited Stafford to emphasize its duty to dismiss an appeal lacking proper appellate jurisdiction. |
| Carriker v. Carriker, 350 N.C. 71, 511 S.E.2d 2 (1999) | Definition of interlocutory orders as orders made during the pendency of an action that do not finally dispose of the case. | The court relied on Carriker to clarify the interlocutory nature of the sanctions order. |
| Turner v. Norfolk S. Corp, 137 N.C. App. 138, 526 S.E.2d 666 (2000) | Conditions for immediate appeal of interlocutory orders: certification under Rule 54(b) or deprivation of a substantial right. | The court applied Turner to explain the limited circumstances under which interlocutory orders may be appealed. |
| Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252 (1994) | Appellant's burden to show grounds for interlocutory appeal and requirements for appellate briefs. | The court cited Jeffreys to emphasize plaintiff's failure to meet the burden of showing grounds for interlocutory appeal. |
| Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999) | Definition of a "substantial right" as a legal right of substance materially affecting interests entitled to protection by law. | The court used Sharpe to assess whether the sanctions order affected a substantial right justifying immediate appeal. |
| Oestreicher v. American Nat'l Stores, 290 N.C. 118, 225 S.E.2d 797 (1976) | Definition and explanation of "substantial right." | Quoted in Sharpe and relied upon to define substantial rights in the context of appealability. |
| Stevenson v. Joyner, 148 N.C. App. 261, 558 S.E.2d 215 (2002) | General rule that discovery orders are interlocutory and not immediately appealable. | The court cited Stevenson to reinforce the principle that discovery sanctions orders are not generally subject to immediate appeal. |
Court's Reasoning and Analysis
The court determined that the sanctions order was interlocutory because it did not dispose of the entire case, which had not yet proceeded to trial. The trial court had not certified the order under Rule 54(b), nor did the plaintiff demonstrate that a substantial right would be lost without immediate appeal. The court emphasized that interlocutory appeals require either certification or a showing that a substantial right is affected, and that it is the appellant's burden to establish such grounds. Plaintiff’s brief contained only a general assertion of appealability without supporting facts or argument, failed to assert any statutory privilege, and did not file a motion for protective order. The court relied on established definitions of interlocutory orders and substantial rights, concluding that postponing appellate review until after trial would not jeopardize any substantial right of the plaintiff. Consequently, the court dismissed the appeal for lack of appellate jurisdiction.
Holding and Implications
DISMISSED.
The court held that the plaintiff's appeal from the sanctions order is interlocutory and not immediately appealable because the order did not dispose of the case, was not certified under Rule 54(b), and did not affect a substantial right. The direct effect of this decision is that the sanctions order will stand for the time being and any appellate review must await a final judgment after trial. The opinion sets no new precedent but reinforces the established principle that discovery sanctions orders are generally not subject to immediate appeal absent special circumstances.
Appeal and Error — appealability — interlocutory order — sanction for failure to comply with discovery order
Plaintiff's appeal in a medical malpractice action from an order sanctioning him for failure to comply with a discovery order is dismissed as an appeal from an interlocutory order, because: (1) the order for sanctions did not dispose of the case which has not yet come to trial; (2) the trial court did not certify the order for sanctions under N.C.G.S. § 1A-1, Rule 54(b); and (3) a substantial right will not be lost if the order is not immediately appealed.
BIGGS, Judge.
Plaintiff appeals from an order sanctioning him for failure to comply with a discovery order. We dismiss plaintiff's appeal as interlocutory.
This appeal arises from a medical malpractice action filed by plaintiff February, 2000, in which he alleged that defendant (Dr. Mutton) was negligent in his treatment of plaintiff's appendicitis. Plaintiff, subsequent to filing suit, dismissed claims against all defendants except Dr. Mutton, the only defendant in the present appeal. In May, 2000, defendant filed his first set of interrogatories. He sought information regarding, inter alia, plaintiff's expert witnesses, medical records, medication history, employment and tax records, criminal record, the factual basis for certain allegations in the complaint, and an accounting of plaintiff's medical expenses, loss of income, and other alleged damages.
Plaintiff responded to defendant's interrogatories in July, 2000. He generally objected on the basis that the interrogatories were overly broad, unduly burdensome, sought privileged or confidential information, and "otherwise exceed[ed] the scope of permissible discovery." However, plaintiff did not file an objection to any specific request for information, or associate his general objections with any particular request, document, or item of information. Nor has plaintiff filed a motion for a protective order.
Between May and September, 2000, plaintiff produced some, but not all, of the requested documents. On 30 September 2000, defendant filed a Motion to Compel discovery, which was granted on 30 October 2000. The trial court ordered plaintiff to fully and completely answer each interrogatory, including subparts, and to produce each document requested by 18 November 2000. In response, plaintiff filed several supplemental answers to defendant's interrogatories. In each, plaintiff reiterated his general objections to defendant's interrogatories, while including some additional records.
In April, 2001, defendant filed a motion for sanctions under N.C.G.S. 1A-1, Rule 37 (2001). On 23 May 2001, the trial court entered an order granting defendant's motion for sanctions. The court found that, even after the entry of an order compelling discovery, that plaintiff's supplemental responses had included "prior answers subject to continued objections which had already been overruled[,]" and that defendant had "failed to fully and completely respond to defendant's first set of interrogatories and request for production of documents[.]" The trial court also found that despite defendant's requests, plaintiff and plaintiff's counsel have chosen not to resubmit plaintiff's discovery without objections. The court concluded that plaintiff had failed to comply with the order compelling discovery, and failed to "fully and completely answer each interrogatory, including subparts, and completely produce each document requested." The court ordered that plaintiff comply with the earlier discovery order on or before July 13, 2001, and imposed monetary sanctions on plaintiff's counsel. Plaintiff appeals from this order.
We conclude that plaintiff's appeal is not properly before us, notwithstanding the failure of either party to address the issue. "Although the interlocutory nature of the instant appeal has not been raised by the parties, . . . `[i]f there is no right of appeal, it is the duty of an appellate court to dismiss the appeal on its own motion.'" Yang v. Three Springs, Inc., 142 N.C. App. 328, 330, 542 S.E.2d 666, 667 (2001) (quoting Stafford v. Stafford, 133 N.C. App. 163, 164, 515 S.E.2d 43, 44, aff'd per curiam, 351 N.C. 94, 520 S.E.2d 785 (1999)).
"A judgment is either interlocutory or the final determination of the rights of the parties." N.C.G.S. § 1A-1, Rule 54 (2001). "Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy." Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citations omitted). The order for sanctions entered in the case sub judice is interlocutory because it did not finally dispose of the case, which has not yet come to trial. Yang, 142 N.C. App. 328, 542 S.E.2d 666.
Although there is generally no right to appeal an interlocutory order, it 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. Turner v. Norfolk S. Corp., 137 N.C. App. 138, 526 S.E.2d 666 (2000). "Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal[.]" Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). Moreover, under N.C.R. App. P. 28(b)(4), an appellant's brief must contain "a statement of the grounds for appellate review" and if the appeal is interlocutory, this statement "must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right."
Plaintiff's notice of appeal includes the general statement that "[t]he order which is the subject of this appeal, is immediately appealable given the issues raised therein." However, that perfunctory allegation constitutes the entirety of plaintiff's attention to this issue. Plaintiff failed to include in his brief a statement of the grounds for appeal. He has not asserted a statutory privilege, has not argued that a substantial right is affected, and has never filed a motion for a protective order to prevent discovery of specific documents.
In the present case, the trial court did not certify the order for sanctions under Rule 54(b), nor do we conclude that a substantial right will be lost if the order is not immediately appealed. A `substantial right' is "a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a [person] is entitled to have preserved and protected by law: a material right." Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quoting Oestreicher v. American Nat'l Stores, 290 N.C. 118, 121-222, 225 S.E.2d 797, 800 (1976)). "Generally, appellate courts do not review discovery orders because of their interlocutory nature." Stevenson v. Joyner, 148 N.C. App. 261, 263, 558 S.E.2d 215, 217 (2002).
We hold that no substantial right of plaintiff's would be jeopardized by postponing appeal of the discovery order until after trial. Accordingly, plaintiff's appeal must be dismissed.
Dismissed.
Judges GREENE and WYNN concur.
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