Opinion
No. COA10-596
Filed 19 July 2011 This case not for publication
Appeal by defendants from order entered 3 December 2009 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 March 2011.
McGuire Woods, LLP, by H. Landis Wade, Jr., and Steven N. Baker, for plaintiff-appellee Fifth Third Bank. Fuller Barnes, LLP, by Trevor M. Fuller and Michael D. Barnes, for defendant-appellants Sonya Y. Gorman and Kevin J. Young. Cranfill Sumner Hartzog LLP, by Richard T. Boyette and Jaye E. Bingham, for third-party defendant-appellees Arnold Greg Anderson and Edward Brent Anderson.
Mecklenburg County No. 09 CVS 9191.
Defendant-appellants Sonya Y. Gorman ("Gorman") and Kevin J. Young ("Young") (collectively, "defendants") appeal an order entered 3 December 2009, permitting the deposition of Joel Conkin ("Attorney Conkin"). We dismiss defendants' appeal as moot.
I. BACKGROUND
On 4 April 2008, Jerome E. Williams, Jr., M.D. ("Williams"); Jerome E. Williams, Jr., M.D. Consulting LLC; and Adelle A. Williams, M.D. (collectively, "the Williams parties") filed a complaint in Mecklenburg County Superior Court against, inter alia, Fifth Third Bank ("the Bank") and Arnold Greg Anderson and Edward Brent Anderson (collectively, "the Andersons"), alleging claims of Unfair Deceptive Practices ("UDP"), Fraud, Constructive Fraud, Aiding and Abetting Fraud, Fraud in the Inducement, Negligent Misrepresentation, Conversion, Negligence, Tortious Action in Concert and Civil Conspiracy, Breach of Fiduciary Duty, Breach of Contract, Breach of the Duty of Good Faith and Fair Dealing, Breach of Surety Agreement, and Violation of the Mortgage Lending Act (N.C. Gen. Stat. § 53-243.01 et seq.). The claims related to the Williams parties' involvement in a real estate development called the Village of Penland. On 23 June 2008, the Bank replied and filed counterclaims against Williams, alleging that he defaulted on a promissory note, committed fraud against the Bank, and engaged in UDP against the Bank.
On 21 November 2008, the Bank filed actions against defendants, alleging claims that they defaulted on promissory notes, committed fraud against the Bank, and engaged in UDP against the Bank. On 17 February and 10 March 2009, defendants filed answers and counterclaims against the Bank, alleging claims of UDP, Fraud, Constructive Fraud, Aiding and Abetting Fraud, Fraud in the Inducement, Negligent Misrepresentation, Conversion, Negligence, Tortious Action in Concert and Civil Conspiracy, Breach of Fiduciary Duty, Breach of Contract, and Breach of the Duty of Good Faith and Fair Dealing.
On 30 March and 7 April 2009, defendants commenced a third party action against the Andersons, alleging claims of UDP, Fraud, Constructive Fraud, Aiding and Abetting Fraud, Fraud in the Inducement, Negligent Misrepresentation, Conversion, Negligence, Tortious Action in Concert and Civil Conspiracy, Breach of Fiduciary Duty, Breach of Contract, Breach of the Duty of Good Faith and Fair Dealing, Breach of Surety Agreement, and Violation of the Mortgage Lending Act (N.C. Gen. Stat. § 53-243.01 et seq.). The Andersons moved to dismiss defendants' claims against them, and on 14 May 2010, the trial court granted the Andersons' motions as to defendants with the exception as to their claims for UDP.
On 2 October 2009, the Bank served a notice of deposition and issued a subpoena duces tecum to Attorney Conkin, an attorney licensed to practice law in Tennessee, who represented defendants in their purchase of property in the Village of Penland. On 12 October 2009, the Bank obtained a commission for witness testimony for Attorney Conkin.
"The clerk of superior court is authorized to:
. . .
(3) Issue commissions to take the testimony of any witness within or without the State." N.C. Gen. Stat. § 7A-103 (2010).
On 6 November 2009, the Bank filed a motion regarding Attorney's Conkin's Deposition. At a hearing on 25 November 2009, defendants moved for a protective order regarding Attorney Conkin's deposition. On 3 December 2009, the trial court entered an order permitting Attorney Conkin's deposition and denying defendants' motion for protective order. Attorney Conkin was deposed on 15 December 2009 in Knoxville, Tennessee. Defendants appeal the order permitting Attorney Conkin's deposition.
II. MOOTNESS
Defendants argue that the trial court erred in permitting a "virtually unfettered deposition" of Attorney Conkin. We dismiss defendants' argument as moot.
Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.
In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978).
In the instant case, at a hearing on 25 November 2009, defendants moved for a protective order regarding Attorney Conkin's deposition. On 3 December 2009, the trial court entered an order denying defendants' motion for a protective order and requiring Attorney Conkin to: (1) produce all non-privileged documents in his possession; (2) provide all documents that he contended were privileged to the trial court for an in camera review; and (3) submit to a deposition, with protections in place to guard against disclosure of privileged communications.
Prior to the deposition, Attorney Conkin produced all privileged documents, and provided all privileged documents to the court. Attorney Conkin was deposed on 15 December 2009 in Knoxville, Tennessee. Defendants did not file notice of appeal from the order permitting Attorney Conkin's deposition until 5 January 2010, more than two weeks after the deposition took place. Once Attorney Conkin produced the required documents and submitted to the deposition, the questions originally in controversy between the parties were no longer at issue. Therefore, we dismiss defendants' appeal as moot because this Court "will not entertain or proceed with a cause merely to determine abstract propositions of law." In re Peoples, 296 N.C. at 147, 250 S.E.2d at 912.
Dismissed.
Judges BEASLEY and McCULLOUGH concur.
Report per Rule 30(e).