Wright v Smith, (05-775) 04/18/2006

Appeal by Buncombe County Department of Social Services from order entered 29 December 2004 by Judge Laura J. Bridges in District Court, Henderson County. Heard in the Court of Appeals 6 March 2006.

    Holtkamp Law Firm, by Lynne M. Holtkamp, for plaintiff- appellees.

    Charlotte W. Nallan, for Buncombe County Dep't of Social Services-appellant.

    Clarke K. Wittstruck, for defendant-appellees, no brief filed.

    WYNN, Judge.

    Discovery orders are interlocutory and 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). As Appellant asserted no substantial right and no such right was found in this discovery order appeal, we dismiss this appeal as interlocutory.    On 13 February 2003, Plaintiffs Billy and Gloria Wright were granted custody of their grandchild. On 9 March 2004, the Wrights filed a Motion for Cause to order the Buncombe County Department of Social Services to produce the complete file of the grandchild, which was previously produced to the trial court in February 2003, and to allow the Wrights to review and copy the files. The Wrights' stated purpose for the need of these records is for the care and services of the grandchild and their need to know their grandchild's previous medical care and treatment. Buncombe County DSS was served with a subpoena for the grandchild's records and a Notice of Hearing for 16 March 2004.
    On 16 March 2004, a hearing was held on the Motion for Cause, however no representative for the Buncombe County DSS appeared. The trial court granted the motion and asked the Wrights' counsel to draft a proposed order. Later that day, counsel for Buncombe County DSS appeared and submitted a Motion to Quash the subpoena on the grounds that it is unreasonable and oppressive, and would violate sections 7B-2901(b) and 108A-80 of the North Carolina General Statutes and federal law. On 25 August 2004, Judge Laura Bridges entered an order requiring, inter alia, Buncombe County DSS to produce all documents that constitute the files of the grandchild and his three siblings, and allowing the Wrights to review and copy files upon request, except for medical records for two of the siblings.
    On 27 October 2004, Buncombe County DSS sent a letter to Chief Judge Robert Cilley questioning how and who removed the children'sfiles in the instant case from the Henderson County Clerk's office.     On 22 November 2004, the Wrights filed a Motion to Compel and for Sanctions along with a Notice of Hearing for 1 December 2004. The hearing was continued to 28 December 2004. On 1 December 2004, the Buncombe County DSS filed a Motion to Set Aside Order and for Recusal of Judge Bridges.
    By order entered 29 December 2004, Judge Bridges denied Buncombe County DSS's motions for continuance, recusal, and to set aside the August 2004 order. Judge Bridges also ordered that Buncombe County DSS shall “produce the entire original record in its possession custody and control which was previously produced to this Court in February, 2003 regarding [the grandchild] and his three siblings, . . . to the Henderson County Clerk of Court by no later than 12:00 p.m. December 30, 2004.” The records were to be delivered under seal and restricted until a further hearing to determine which individuals shall have access to the records. From this order, the Buncombe County DSS appeals.
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    The dispositive issue on appeal is whether this appeal must be dismissed as interlocutory. Although neither party has addressed the issue of the Buncombe County DSS's right to appeal, “[i]f an appealing party has no right of appeal, an appellate court on its own motion should dismiss the appeal even though the question of appealability has not been raised by the parties themselves.” Waters v. Qualified Personnel, Inc., 294 N.C. 200, 201, 240 S.E.2d 338, 340 (1978) (footnote omitted); see also Bailey v. Gooding, 301N.C. 205, 208, 270 S.E.2d 431, 433 (1980) (Court of Appeals should sua sponte address if appeal is interlocutory).     An order 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 rights of all parties involved in the controversy. See Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950); Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002).
    In this case, Buncombe County DSS states that it is appealing from a final order. But the trial court's 29 December 2004 order clearly did not resolve all the issues, and anticipated another hearing to determine who would be allowed, and under what circumstances, to review and/or copy the children's records; therefore, this order is interlocutory. See id.
    Generally, there is no right to appeal from an interlocutory order. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2005); Veazey, 231 N.C. at 362, 57 S.E.2d at 381. But there are two instances where a party may appeal interlocutory orders: (1) when there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, and (2) if delaying the appeal would prejudice a substantial right. See Liggett Group, Inc. v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674, 677 (1993). Here, the trial court made no such certification. Thus, Buncombe County DSS is limited to the second route of appeal, namely where “the trial court's decision deprives the appellant of a substantial right which would be lost absentimmediate review.” N.C. Dep't of Transp. v. Page, 119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). In such cases, we may review the appeal under sections 1-277(a) and 7A-27(d)(1) of the North Carolina General Statutes. See id. “The moving party must show that the affected right is a substantial one, and that deprivation of that right, if not corrected before appeal from final judgment, will potentially injure the moving party.” Flitt, 149 N.C. App. at 477, 561 S.E.2d at 513.
    Under North Carolina law, discovery orders are interlocutory and generally do not affect a substantial right which would be lost if the ruling were not reviewed before the final judgment. Sharpe, 351 N.C. at 163, 522 S.E.2d at 579; Dunlap v. Dunlap, 81 N.C. App. 675, 676, 344 S.E.2d 806, 807 (1986) (order to produce business records and documents interlocutory and did not affect a substantial right). But our courts have recognized two narrow exceptions to the rule against direct appeal from discovery orders: where such orders include a finding of contempt or other sanctions, Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (1976), or where a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order. Sharpe, 351 N.C. at 166, 522 S.E.2d at 581.
    Buncombe County DSS contends that it is required to maintain the confidentiality of records pursuant to sections 7B-2901(b) and 108A-80 of the North Carolina General Statutes. However, these statutes do not invoke a statutory privilege which would restrictproduction of the children's records to the trial court. See N.C. Gen. Stat. §§ 7B-2901(b), 108A-80 (2005). Further, the trial court's 29 December 2004 order did not include a finding of contempt or sanctions, but instead stated that if this order was not followed sanctions could be issued.
    We hold that the 29 December 2004 order is interlocutory and does not affect a substantial right. See Sharpe, 351 N.C. at 163, 522 S.E.2d at 579. Accordingly, we dismiss this appeal as premature.
    Dismissed.
    Chief Judge MARTIN and Judge STEPHENS concur.
    Report per Rule 30(e)

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