Opinion
No. COA07-617.
Filed February 19, 2008.
Guilford County No. 04 CVD 3115.
Appeal by defendant from order entered 8 December 2006 by Judge Patrice A. Hinnant in Guilford County District Court. Heard in the Court of Appeals 21 January 2008.
Grimes Grimes of North Carolina, PA, by L. Charles Grimes and Elizabeth G. Grimes, for plaintiffs-appellees. Rodney C. Mason for defendant-appellant.
Defendant Ronald Cecil Farlow appeals from the trial court's order denying his motion to compel discovery and for sanctions, and granting plaintiffs' motion to compel discovery and, in part, plaintiffs' request for sanctions. Because the trial court's order is interlocutory, and defendant has failed to establish that a substantial right would be affected in the absence of an immediate appeal, we dismiss the appeal.
On 6 January 2004, plaintiffs James M. Farlow and Mary S. Farlow filed a complaint alleging that defendant, their youngest son, was liable for breach of fiduciary duty, breach of contract, breach of fiduciary trust, conversion, fraud, and unfair and deceptive trade practices. Plaintiffs sought an accounting, imposition of a constructive trust on certain real property, specific performance, and additional equitable relief. Defendant answered and asserted a counterclaim, seeking an award of $92,540.00 from plaintiffs for amounts allegedly owed by them to defendant.
The parties commenced discovery, but disputes arose regarding the scheduling of depositions and responses to written discovery requests. Initial disputes of the parties were resolved through a consent order entered on 1 May 2006. On 9 June 2006, plaintiffs filed a motion to compel defendant to provide complete responses to seven interrogatories and to produce documents responsive to one request for production of documents. On 16 June 2006, defendant filed a motion for sanctions against plaintiffs for failure to allow discovery and a response to plaintiffs' motion to compel. As relief, defendant sought an order requiring plaintiffs to appear for depositions, an order dismissing all or part of plaintiffs' claims, and a default judgment on defendant's counterclaim.
On 8 December 2006, the trial court entered an order denying defendant's motion. With respect to plaintiffs' motion to compel, the trial court ordered defendant to provide certain specified information and documents to plaintiffs. The court allowed plaintiffs' motion for sanctions in part, ordering defendant (1) to refrain from directly contacting plaintiffs, plaintiffs' counsel, and defendant's sister other than through defendant's legal counsel; (2) to cease filing other complaints or grievances with governmental agencies, third party service providers, or vendors regarding plaintiffs, defendant's sister, or plaintiffs' legal counsel without prior review and approval from the trial court; and (3) to refrain from the sale or transfer of any of the real property that is the subject of the litigation. The trial court further ordered that depositions of the parties would occur within 30 days of the date of the order; that defendant, if present during plaintiffs' depositions, was to have no eye contact with plaintiffs and was to be shielded from their view; and that any conduct of defendant in violation of the order would result in defendant's being found in contempt. Finally, the court stated: "The Court has voiced from the bench, and hereby places within this Order, the Court's contemplation of appointment of a guardian ad litem for the Defendant, and the Court shall refrain from such appointment at this time and hold under advisement any decision in this regard provided that the Defendant acts in accordance with the requirements of this Order."
Defendant has appealed from this order. Defendant does not dispute that this appeal is interlocutory, but contends that the order affects a substantial right entitling him to immediate review. "[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). Rule 28(b)(4) of the Rules of Appellate Procedure requires that an appellant's brief contain a statement of grounds for appellate review and specifies: "When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right." In his brief's statement of the grounds for appellate review, defendant asserts only:
The trial judge's discovery order of 8 December 2006, recites that it allows Plaintiffs' Motion for, Sanction. An order containing an enforcement sanction, affects a substantial right of the Defendant and makes, the order immediately appealable. See Mack v. Moore, 372 S.E.2d 314, 91 N.C. App. 478, review denied, 377 S.E.2d 225, 323 N.C. 704 (198[9]). As additional, grounds, Defendant states that [sic] trial judge's, denial of Defendant's Motion to Compel Plaintiffs to, make full and complete written Discovery and to allow, deposition of the Plaintiffs without unreasonable, limitation denied the Defendant the opportunity to, obtain information crucial to his defense and thereby, denied him a substantial right. The denial of that, substantial right warrants an immediate review by this, Court under the provisions of G.S. §§ 1-277 and, 7A-27(d)(1).
(Citations to record omitted.)
Our appellate courts have held that certain sanctions orders may affect a substantial right. In Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (1988) (quoting Benfield v. Benfield, 89 N.C. App. 415, 418, 366 S.E.2d 500, 502 (1988)), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989), the authority cited by defendant, this Court explained that "when a party is `adjudged to be in contempt for noncompliance with a discovery order or has been assessed with certain other sanctions,' the order is immediately appealable because `it affects a substantial right.'" In his brief, however, the only aspect of the trial court's order arguably relating to sanctions that defendant challenges is "the court's restriction of the Defendant . . . from sitting next to his counsel during his deposition of the Plaintiffs and assisting in the deposition by among other things forming an opinion of the witness' credibility by observing his demeanor." Defendant provides no authority or argument as to how such a restriction on the conduct of a deposition affects a substantial right.
With respect to the denial of defendant's motion to compel, this Court has held:
an order denying discovery is immediately appealable, if the discovery sought would not have delayed trial, or have caused the opposing party any unreasonable, annoyance, embarrassment, oppression or undue burden, or expense, and if the information desired is highly, relevant to a determination of the critical question, to be resolved in the case.
N.C. Farm Bureau Mut. Ins. Co. v. Wingler, 110 N.C. App. 397, 401, 429 S.E.2d 759, 762, disc. review denied, 334 N.C. 434, 433 S.E.2d 177 (1993). Here, defendant argues only in conclusory fashion "that the trial court's denial of his motion to compel discovery of information highly relevant to the questions critical to the resolution of his case amounted to an abuse of its discretion."
Although defendant never refers to any specific discovery request, it appears, although not clearly so, that defendant believes that the trial court erred in not finding evasive and incomplete plaintiffs' production of 900 pages of documents in response to defendant's request for production of documents. Defendant's written motion to compel, however, did not specifically ask the trial court to enter any order compelling a further response to his document requests and interrogatories. The only discovery defendant sought to compel was plaintiffs' depositions at a "time certain." The trial court granted that aspect of defendant's motion and, therefore, we can see no basis for concluding that defendant has been denied discovery "relevant to a determination of the critical question" in the case. Id.
Defendant has made no attempt to explain in what way the trial court's order denying his motion for sanctions and granting plaintiffs' motion to compel affects a substantial right. "It is not the duty of this Court to construct arguments for or find support for appellant's right to appeal from an interlocutory order." Jeffreys, 115 N.C. App. at 380, 444 S.E.2d at 254. As defendant has failed to sustain his burden of justifying the appeal of the interlocutory discovery order, his appeal must be dismissed.
Dismissed.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).