Court of Appeals of North Carolina.
Joyce C. MENIUS, Plaintiff
v.
CEI TRANSPORTATION, INC., f/k/a Terminal Trucking Company, Inc., IR, Inc., f/k/a B.I.K. Rentals, Inc., Black, Grossman, & Heim, P.A., f/k/a Black, Grossman, & Cain, P.A., and Charles Eugene Isenhour, Jr ., Individually, Defendants.
No. COA12–929.
March 19, 2013.
*1 Appeal by plaintiff from orders entered 3 February 2012 by Judge A. Robinson Hassell in Cabarrus County Superior Court. Heard in the Court of Appeals 12 December 2012.
Jenny L. Sharpe and Jackson & McGee, LLP, by Gary W. Jackson and Sam McGee, for plaintiff-appellant.
Bray & Long, PLLC, by Jeffrey A. Long, for defendant-appellees CEI Transportation, Inc., IR, Inc., and Charles Eugene Isenhour, Jr.
Poyner Spruill LLP, by Cynthia L. Van Horne and E. Fitzgerald Parnell, III, for defendant-appellee Black, Grossman & Heim, P.A.
CALABRIA, Judge.
Joyce C. Menius (“plaintiff”) appeals from (1) the trial court’s order dismissing plaintiff’s claims against defendant Black, Grossman & Heim, P.A., f/k/a Black, Grossman, & Cain, P.A. (“BGH”); and (2) the trial court’s order denying plaintiff’s motion to compel discovery and granting defendants CEI Transportation, Inc., f/k/a Terminal Trucking Company, Inc., (“CEI”), IR, Inc. (“IR”), and Charles Eugene Isenhour, Jr.’s (“Isenhour”) motion for a protective order. We dismiss the appeal as interlocutory.
I. Background
On 16 August 2010, plaintiff was awarded a default judgment in the amount of $189,541.40 against CEI in Cabarrus County Superior Court (“the judgment”). When plaintiff and her counsel attempted to collect this judgment, they were informed by CEI’s attorney, Aimee E. Cain (“Cain”), who was a partner at BGH, that CEI “has no assets, has never filed a tax return, has no employees and does not even maintain a checking account.” On 4 November 2010, the Cabarrus County Clerk of Superior Court issued a Writ of Execution for the judgment. The Cabarrus County Sheriff’s Office returned the writ after determining that CEI possessed no assets which could be levied upon.
Consequently, plaintiff initiated an action against, inter alia, CEI, BGH, and Isenhour, who was the president and owner of CEI, in Cabarrus County Superior Court. Plaintiff’s complaint alleged that CEI violated the Uniform Fraudulent Transfer Act, N.C. Gen.Stat. § 39.23.1, et seq., and that BGH failed to comply with its statutory obligation to disclose corporate assets during the lawful execution of a judgment against a corporate entity. BGH did not file an answer to plaintiff’s complaint, but instead filed a motion to dismiss plaintiff’s claims against it pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure or, in the alternative, for judgment on the pleadings pursuant to Rule 12(c).
On 3 November 2011, plaintiff served Cain FN1 and H. David Black (“Black”), another partner at BGH, with a notice of her intent to depose them regarding her case. In addition, plaintiff served a subpoena duces tecum on Black, seeking to compel him to produce all documents evidencing communications between Black and CEI. On 21 November 2011, plaintiff also served subpoenas duces tecum on CEI, IR, and Isenhour, seeking various financial documents as well as documentation of defendants’ fee agreements with BGH and other attorneys.
FN1. Cain was no longer a partner at BGH.
*2 CEI, IR, and Isenhour responded to plaintiff’s subpoenas by filing a motion for a protective order (“the motion for protective order”) seeking to protect documents and information which were protected by the attorney-client privilege. Plaintiff then filed motions to compel the production of documents from CEI, IR, Isenhour, and Black.
On 23 January 2012, the trial court conducted a hearing on BGH’s motion to dismiss, plaintiff’s motion to compel, and the motion for protective order. On 3 February 2012, the court entered orders dismissing plaintiff’s claims against BGH, denying plaintiff’s motion to compel, and granting the motion for protective order. Plaintiff appeals.
II. Interlocutory Appeal
As an initial matter, we note that plaintiff appeals from interlocutory orders. “An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (citations omitted). “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Goldston v. Am. Motors Corp ., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However,
immediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay…. Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161–62, 522 S.E.2d 577, 579 (1999) (internal quotations and citations omitted). In the instant case, the trial court’s order did not include a certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 54(b). Consequently, plaintiff’s appeal is only properly before this Court if the trial court’s orders affect a substantial right. “[T]he appellant has the burden of showing this Court that the order deprives the appellant of a substantial right which would 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).
A. Order Granting Motion to Dismiss
Plaintiff first contends that the trial court’s order dismissing her claims against BGH affects a substantial right because “the factual issues surrounding both [of plaintiff’s] claims overlap substantially and could result in two trials on the same issue.” However, “the possibility of undergoing a second trial affects a substantial right only when the same issues are present in both trials, creating the possibility that a party will be prejudiced by different juries in separate trials rendering inconsistent verdicts on the same factual issue.” Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982). “The party asserting a substantial right in this context must show not only that the same factual issues would be present in both trials, but also that the possibility of inconsistent verdicts on those issues exists.” Builders Mut. Ins. Co. v. Meeting St. Builders, LLC, –––N.C.App. ––––, ––––, 736 S.E.2d 197, –––– (2012) (emphasis added). Since plaintiff does not argue in her brief that the trial court’s dismissal of her claims would potentially result in inconsistent jury verdicts, she has failed to meet her burden to demonstrate that the trial court’s order of dismissal affects a substantial right. Therefore, the order of dismissal is not properly before this Court.
II. Protective Order
*3 Plaintiff also argues that the trial court’s order denying her motion to compel discovery and granting CEI, IR, and Isenhour’s motion for protective order affects a substantial right because “[t]he court’s order prejudicially restricts [plaintiff’s] ability to prove the critical elements of her claims against the remaining Appellees ….“
[A]n interlocutory order denying discovery affects a substantial right which would be lost if the ruling were not reviewed before final judgment (1) “if the information desired is highly material to a determination of the critical question to be resolved in the case,” and (2) “if the desired discovery would not have delayed trial or have caused the opposing party any unreasonable annoyance, embarrassment, oppression or undue burden or expense.”
James v. Bledsoe, 198 N.C.App. 339, 345, 679 S.E.2d 494, 498 (2009)(quoting Dworsky v. Travelers Ins. Co., 49 N.C.App. 446, 447–48, 271 S.E.2d 522, 523 (1980)). The information sought must be “so crucial to the outcome of [the] case that it would deprive [the appellant] of a substantial right and thus justify an immediate appeal.” Dworsky, 49 N.C.App. at 448, 271 S.E.2d at 524.
Plaintiff contends that her appeal of the trial court’s order satisfies the Dworsky standard because “[t]he partners of Black Grossman are the only witnesses in this case who have first-hand knowledge of Appellee Isenhour’s fraudulent intent” and “they have relevant knowledge concerning the financial status of Appellees CEI, IR, Inc. and Isenhour.” However, plaintiff fails to acknowledge that the information she seeks may be readily obtained through other sources, including the accountants for CEI and IR, the respective corporate representatives of CEI and IR, and Isenhour himself. Plaintiff does not explain why Black and Cain, as attorneys for CEI and Isenhour, would be the sole or even the best source of the financial information she seeks.
Moreover, plaintiff fails to identify any specific information that Black and Cain alone would be able to provide to support her claim. Plaintiff’s subpoena to Black broadly sought “[a]ll documents including emails, letters and notes evidencing all communications between Charles Eugene Isenhour and David Black or any member of Black, Grossman & Heim during the period beginning 10/13/09 through the present date.” Even assuming, arguendo, that some of these communications included information which was discoverable and “highly material,” “plaintiff[ is] not entitled to a fishing expedition to locate it.” Dworsky, 49 N.C.App. at 448, 271 S.E.2d at 524. Ultimately, plaintiff has failed to demonstrate the existence of any specific information sought by her motion to compel that would be “so crucial to the outcome of th[e] case” that it would deprive her of a substantial right under Dworsky. Id. As a result, the trial court’s order denying plaintiff’s motion to compel and granting the motion for a protective order is also not properly before this Court.
III. Conclusion
*4 Plaintiff has only appealed from interlocutory orders which do not affect a substantial right. Consequently, plaintiff’s appeal must be dismissed.
Dismissed.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
