Appeal and Error_appealability_denial of motion for Rule 11
sanctions
An appeal was dismissed as interlocutory, despite
certification pursuant to N.C.G.S. § 1A-1, Rule 54(b), where
plaintiff sought to appeal from the denial of Rule 11 sanctions.
The denial of the motion for sanctions does not implicate a
substantial right which will be lost if this particular case
moves forward to a final judgment.
Twiggs, Abrams, Strickland & Rabenau, P.A., by Howard F.
Twiggs, Donald R. Strickland, and Jeff E. Essen; and Richard
S. Hunter, Jr., for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by James P. Cooney
III; and Northup & McConnell, P.L.L.C., by Isaac N. Northup,
Jr., and Elizabeth E. McConnell, for defendant-appellee
Choong.
Roberts & Stevens, by Jacqueline Grant and Jim Williams, for
defendant-appellee Alexander Community Hospital, Inc.
Kuniholm Law Firm, by Elizabeth F. Kuniholm, for North
Carolina Academy of Trial Lawyers, amicus curiae.
Carruthers & Roth, P.A., by Richard L. Vanore and Norman F.
Klick, Jr., for North Carolina Association of Defense
Attorneys, amicus curiae.
PER CURIAM.
Plaintiff appeals from the trial court's order denying
plaintiff's motion for sanctions against counsel for Han Pyo
Choong, M.D. (hereinafter “defendant”). Plaintiff claims thatdefendant's counsel, Elizabeth McConnell, violated the Rules of
Professional Conduct and case law prohibiting ex parte
communication between an attorney and a non-party treating
physician by mailing a letter complete with attachments to one of
plaintiff's physicians prior to his deposition. The trial court
denied plaintiff's request for sanctions, concluding as a matter of
law that defense counsel violated neither the North Carolina
Supreme Court's holding in Crist v. Moffatt, 326 N.C. 326, 389
S.E.2d 41 (1990), nor Ethics op. RPC 162, which prohibits
communication “with the opposing party's nonparty treating
physician about the physician's treatment of the opposing party
unless the opposing party consents.” The trial court certified the
order for appellate review pursuant to G.S. § 1A-1, Rule 54(b).
A litigant is entitled to appeal either from a final judgment
or from an interlocutory order which affects a substantial right.
Hart v. F.N. Thompson Const. Co., 132 N.C. App. 229, 511 S.E.2d 27
(1999) (citing N.C. Gen. Stat. § 1-277(a); N.C. Gen. Stat. §
7A-27). An interlocutory order affects a substantial right when
the order "deprive[s] the appealing party of a substantial right
which will be lost if the order is not reviewed before a final
judgment is entered." Cook v. Bankers Life & Cas. Co., 329 N.C.
488, 491, 406 S.E.2d 848, 850 (1991) (citation omitted). Our
Supreme Court has held that it is typically necessary to determine
whether a substantial right is affected on a case by case basis
“'by considering the particular facts of that case and the
procedural context in which the order from which appeal is sought
was entered.'” Sharpe v. Worland, 351 N.C. 159, 162-63, 522 S.E.2d577, 579 (1999) (citation omitted). Although a trial court
may
certify the issues for immediate review pursuant to G.S. § 1A-1,
Rule 54(b) and G.S. § 1-277, this certification does not bind the
appellate court because “'ruling on the interlocutory nature of
appeals is properly a matter for the appellate division, not the
trial court.'” First Atlantic Management Corp. v. Dunlea Realty
Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 61 (1998) (quoting
Estrada v. Jaques, 70 N.C. App. 627, 640, 321 S.E.2d 240, 249
(1984)).
As a general rule, discovery orders do not affect a
substantial right and are not immediately appealable. See Norris
v. Sattler, 139 N.C. App. 409, 533 S.E.2d 483 (2000) (denial of
defendant-hospital's motion seeking permission to contact non-party
physician, who allegedly caused the plaintiff's injury, did not
implicate substantial right of the hospital because the hospital
could gather evidence through formal discovery). Although North
Carolina's appellate courts have permitted review of discovery
orders when a substantial right is affected, no North Carolina
court has allowed review of the denial of a motion for sanctions
for an alleged violation of the rules against ex parte
communications on the grounds that a substantial right is affected.
The trial court's order denying plaintiff's motion for sanctions
does not implicate a substantial right of plaintiff which will be
lost if this particular case moves forward to a final judgment.
Appeal dismissed.
Panel consisting of:
EAGLES, C.J., MARTIN, and BIGGS, JJ.
*** Converted from WordPerfect ***