An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.

NO. COA05-854

Filed: 7 March 2006


v .                         Guilford County
                            No. 03 CVS 12215
DOES NO. 1-50,



    Third-Party Defendants.

    Appeal by defendant David Robb from order entered 18 March 2005 by Judge Ben F. Tennille in Guilford County Superior Court. Heard in the Court of Appeals 9 February 2006.

    Bingham McCutchen LLP, by Robert M. Dombroff, Mark M. Elliott and Joshua Dorchak, New York, New York, pro hac vice, and Carruthers & Roth, P.A., by Jack B. Bayliss, Jr., for plaintiff-appellee.

    No brief filed for defendants-appellees Tradewinds Airlines, Inc., Tradewinds Holdings, Inc., Coreolis Holdings, Inc., Richard Ressler, Jeff Conry, George McConnaughey, David Johnson, and John and Jane Does No. 1-50.

    Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Mack Sperling, for defendant-appellant.

    Gibson, Robb, & Lindh, L.L.P., by G. Geoffrey Robb, for defendant-appellant.    
    No brief filed for third-party defendants-appellees.

    TYSON, Judge.

    David Robb (“defendant”) appeals the trial court's grant of plaintiff's motion for sanctions concerning a document produced during discovery, which plaintiff claims is a forgery. We dismiss this appeal as interlocutory and remand.

I. Background
    Tradewinds Airlines, Inc. (“Tradewinds”), an air freight operator based in Greensboro, North Carolina, is wholly owned by Tradewinds Holdings, Inc. (“Holdings”), which in turn is wholly owned by Coreolis Holdings, Inc. (“Coreolis”). Jeff Conry (“Conry”) is the president of Tradewinds. Defendant is the chairman of Tradewinds and Holdings.
    Tradewinds leased seven Airbus aircraft (“aircraft”) from Wells Fargo Bank Northwest (“Wells Fargo”), as owner-trustee under seven written leases (“leases”). The aircraft and leases were managed by C-S Aviation Services, Inc. (“CSA”) until July 2003. James Walsh (“Walsh”) served as CSA's president. The leases provide that Tradewinds shall pay a fixed amount of rental per month per aircraft.
    In October 2002, Tradewinds began paying significantly less rental on each aircraft than the stated sums due in the leases. In July 2003, as part of a loan restructuring, Deutsche Bank Trust Company Americas (“DBTCA”) acquired indirect beneficial ownership of the aircraft. CSA was replaced as manager by Windshear LeasingLLC (“Windshear”). Windshear's personnel remained essentially the same as those of CSA, but Walsh was not offered a position in Windshear. Windshear thereafter maintained CSA's active files located in New York and took custody of CSA's inactive files located in a warehouse in New Jersey (“CSA archives”).
A. The Action
    In November 2003, DBTCA sued, among others, Tradewinds, Conry, and defendant seeking past due rental under the leases. As a defense, Tradewinds asserted that under a “most favored nations” clause the parties had orally amended the leases to reduce Tradewinds' rental.
    DBTCA moved to dismiss Tradewinds' defense. DBTCA argued the leases required any modifications or amendments to be in writing and that no written amendment to the leases existed. Tradewinds and DBTCA produced thousands of pages of documents in discovery, including 27,000 pages from Windshear's active files. No written amendment to the leases was produced or discovered in any of these documents.
    B. The Review
    During review of the CSA archives on 29 and 30 June 2004, Tradewinds' in-house counsel, Bryan Winters (“Winters”), Tradewinds' outside counsel, Heather Wright, an associate from Smith Moore, LLP, and defendant David Robb reviewed the documents. Winters found a copy of a letter purportedly written by Walsh, the president of CSA, to Conry, the president of Tradewinds. The letter was dated 16 December 2002 and found in a box numberedninety eight in a folder entitled “PC Memos,” out of alphabetized order of other files located in the box.
C. The Letter
    Walsh testified that he did not write, authorize, or send the letter. Conry testified he had no recollection of receiving the letter. Winters, who shared a desk with Conry in December 2002, testified that he never had seen the letter. Gary Kincaid, a CSA vice president and the CEO of Windshear, also testified that he never had seen the letter. Part of Kincaid's job responsibilities was to keep track of the lease agreements and rentals. The letter was not located in any files of the lessor (Wells Fargo), manager, (Windshear) or lessee (Tradewinds).
    The letter references a reduction in Tradewinds' annual rental to $120,000.00 per aircraft and promises a further reduction to $110,000.00 in early 2003. The contents of the letter are inconsistent with other evidence: (1) the leases themselves; (2) a PowerPoint presentation dated 16 December 2002, the same date as the letter, in which Walsh reported Tradewinds continued to be in arrears on its rental obligations and would not be given a rental reduction without making significant concessions; (3) CSA's internal delinquency reports; and (4) the entire correspondence between Conry and Walsh through 2003, including a “counterproposal” from Walsh to Conry dated 23 April 2003, in which Walsh conditioned any rent reduction in the future upon full payment of 2002 rental arrears. Also, Conry testified that CSA never agreed to lower Tradewinds' rent. The trial court characterized the letter as “toogood to be true.”    On 8 July 2004, defendants moved to amend their pleading to include the letter, acknowledging the letter was the only written evidence of an amendment to the leases. On 28 July 2004, DBTCA opposed the motion to amend and argued the letter was not authentic. DBTCA submitted Walsh's affidavit in which he stated he did not write, authorize, or send the letter.
    On 19 August 2005, the trial court heard oral argument on the motion to dismiss and the motion to amend. The court directed the parties to pursue further discovery concerning the letter.
    On 29 September 2004, Smith Moore halted discovery. Within days thereafter, Smith Moore withdrew the motion to amend, withdrew as counsel to defendant Robb, and withdrew as counsel to all defendants with respect to the letter. Defendant was fired from his positions with Coreolis, Holdings and Tradewinds because defendant allegedly “lied” concerning the copies of the letter. All defendants except Robb withdrew the motion to amend.
    On 19 October 2004, plaintiff filed a motion for sanctions. Two hearings on separate days were held, but no live testimony was presented. On 18 March 2005, the trial court granted plaintiff's motion. The sanctions were entered solely against Robb, as all other defendants had settled all pending matters with plaintiff.
    After finding that the letter had been manufactured and that Robb had planted the letter in the box, the court concluded, “[d]efendant David Robb has abused the discovery process and is required to reimburse plaintiff for the reasonable attorney fees and expenses incurred in connection with defending the Motion toAmend filed by defendants and in pursuing the Motion for Sanctions.” Defendant appeals.
II. Issue
    Defendant argues the trial court erred when it entered the sanctions order against defendant.
III. Interlocutory Appeal
    This appeal is interlocutory, does not “affect a substantial right under N.C. Gen. Stat. § 1-277,” and is not properly before this Court. Long v. Joyner, 155 N.C. App. 129, 134, 574 S.E.2d 171, 175 (2002), disc. rev. denied, 356 N.C. 673, 577 S.E.2d 624 (2003).
    This Court has stated:
        Certain sanctions have been deemed immediately appealable because they affect a substantial right under N.C.G.S. § 1-277 or § 7A-27(d)(1). However, an order to pay attorney's fees as a sanction does not affect a substantial right. The order granting attorney fees is interlocutory, as it does not finally determine the action nor affect a substantial right which might be lost, prejudiced, or be less than adequately protected by exception to entry of the interlocutory order.

Id. (citations and internal quotations omitted). We are bound by Long.
    The order appealed from states:
        It is therefore ORDERED:

            Counsel for Deutsche Bank shall have thirty days in which to submit a request for fees and expenses supported by contemporaneous time records and expense bills. Mr. Robb shall have fifteen days to respond to the specific request. Thereafter, the Court will set an appropriate amount for sanctions.
    Any appeal must await final resolution of the claims in this case, including a final order on the issue of sanctions.
IV. Findings of Fact
    The parties do not dispute the trial court entered findings that are factually incorrect. In its order, the trial court found as fact “[t]he document in question was found by Mr. Robb in a box he was examining.” All parties agree that Winters, and not defendant Robb, found the letter. “In all actions tried upon the facts without a jury,” the trial court must “find the facts specially and state separately its conclusions of law.” N.C. Gen. Stat. § 1A-1, Rule 52(a) (1) (2003).
    At the hearing on the amount of sanctions, additional facts or testimony may be received, and facts not in dispute or stipulated should be so designated. Moore v. Moore, 160 N.C. App. 569, 572, 587 S.E.2d 74, 75 (2003) (“Where there is directly conflicting evidence on key issues, it is especially crucial that the trial court make its own determination as to what pertinent facts are actually established by the evidence, rather than merely reciting what the evidence may tend to show.”).
V. Conclusion
    Defendant's appeal is not from a final order. This appeal is dismissed as interlocutory, and this cause is remanded.
    Appeal dismissed and remanded.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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