{ "id": 9365367, "name": "ESMAY FRYE STEVENSON, by and through her Guardian, SYLVIA FRYE LONG, Plaintiff v. C. WAYNE JOYNER and wife, CAROL JEAN JOYNER, and CATAWBA VALLEY BANK and D. STEVE ROBBINS, Trustee, Defendants", "name_abbreviation": "Stevenson ex rel. Long v. Joyner", "decision_date": "2002-01-02", "docket_number": "No. COA01-237", "first_page": "261", "last_page": "264", "citations": [ { "type": "official", "cite": "148 N.C. App. 261" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "547 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135616, 135649, 135948, 135763, 135735 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0371-05", "/nc/353/0371-03", "/nc/353/0371-01", "/nc/353/0371-02", "/nc/353/0371-04" ] }, { "cite": "541 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "785", "parenthetical": "internal quotation marks omitted" }, { "page": "786" }, { "page": "791", "parenthetical": "noting that \"[t]he burden of establishing the attorney-client privilege rests upon the claimant of the privilege\"" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 18", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439394 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0018-01" ] }, { "cite": "544 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684907, 684972, 684945, 684919, 684926 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0150-01", "/nc/352/0150-04", "/nc/352/0150-02", "/nc/352/0150-05", "/nc/352/0150-03" ] }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "holding that a trial court's order compelling the disclosure of documents subject to an absolute statutory privilege affected a substantial right and was, thus, immediately appealable" }, { "page": "580-81" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "holding that a trial court's order compelling the disclosure of documents subject to an absolute statutory privilege affected a substantial right and was, thus, immediately appealable" }, { "page": "163-65" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "229 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "holding that a contempt order entered against defendant for not complying with discovery requirements was immediately appealable" } ], "opinion_index": 0 }, { "cite": "291 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557249 ], "year": 1976, "pin_cites": [ { "parenthetical": "holding that a contempt order entered against defendant for not complying with discovery requirements was immediately appealable" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0019-01" ] }, { "cite": "552 S.E.2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "holding that a discovery order in workers' compensation case was not immediately appealable because there was no finding of contempt and no sanctions had been imposed" } ], "opinion_index": 0 }, { "cite": "511 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "311", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237793 ], "year": 1999, "pin_cites": [ { "page": "344", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0341-01" ] }, { "cite": "444 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "253" }, { "page": "253" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129791 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "379" }, { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0377-01" ] }, { "cite": "524 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155689 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0349-01" ] }, { "cite": "513 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "600", "parenthetical": "internal quotation marks omitted" }, { "page": "600" }, { "page": "600" }, { "page": "600" }, { "page": "600" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239820 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "685", "parenthetical": "internal quotation marks omitted" }, { "page": "685" }, { "page": "685" }, { "page": "686" }, { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0682-01" ] }, { "cite": "511 S.E.2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "4", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "350 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132249 ], "year": 1999, "pin_cites": [ { "page": "73", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0071-01" ] } ], "analysis": { "cardinality": 516, "char_count": 9193, "ocr_confidence": 0.759, "pagerank": { "raw": 9.250612316908193e-08, "percentile": 0.5111711146093846 }, "sha256": "cca97b62403eb2ea2e1cd846fad189318c6423771660f4b3647f27bbc9aee3a0", "simhash": "1:9a48746db8fc1eb7", "word_count": 1460 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and TYSON concur." ], "parties": [ "ESMAY FRYE STEVENSON, by and through her Guardian, SYLVIA FRYE LONG, Plaintiff v. C. WAYNE JOYNER and wife, CAROL JEAN JOYNER, and CATAWBA VALLEY BANK and D. STEVE ROBBINS, Trustee, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nC. Wayne Joyner and his wife, Carol Jean Joyner, (\u201cdefendants\u201d) appeal an order compelling defendants to answer questions proposed during a deposition by plaintiff. This order is interlocutory and defendants have failed to demonstrate that a substantial right will be affected should they not be given the immediate right to appeal from this order. We dismiss this appeal.\nThe pertinent procedural history is as follows. Plaintiff, Sylvia Frye Long, filed an action in the Superior Court of Catawba County, as the guardian of her aunt, Esmay Frye Stevenson, on 20 July 2000. In her complaint, plaintiff alleges a number of causes of action including undue influence, fraud, and Esmay Frye Stevenson\u2019s lack of mental capacity against defendants C. Wayne Joyner and his wife, Carol Jean Joyner, Catawba Valley Bank, and D. Steve Robbins. During the course of plaintiffs deposition of C. Wayne Joyner, plaintiffs counsel asked Mr. Joyner questions concerning work with which his counsel had assisted him. Mr. Joyner\u2019s counsel instructed him not to answer based on an invasion of his attorney-client privilege, and he did not answer. On 25 October 2000, plaintiff filed a motion to compel Mr. Joyner to answer the questions presented at the deposition. On 29 November 2000, Judge Timothy S. Kincaid ordered Mr. Joyner to answer the questions. Defendants appeal this order.\nPlaintiff filed a \u201cMotion to Dismiss Appeal as Interlocutory and Not Affecting a Substantial Right\u201d addressing the propriety of raising this issue on appeal and its interlocutory nature. \u201cInterlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.\u201d Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999) (citations omitted). \u201cThe policy behind this rule is to avoid fragmentary, premature and unnecessary appeals by allowing the trial court to completely and finally adjudicate the case before the appellate courts review it.\u201d Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 685, 513 S.E.2d 598, 600 (1999) (internal quotation marks omitted), aff\u2019d, 351 N.C. 349, 524 S.E.2d 804 (2000).\nIn general, there is no right to appeal from an interlocutory order. See, e.g. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). However, a party may appeal an interlocutory order \u201cwhere the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal,\u201d or \u201cwhere delaying the appeal will irreparably impair a substantial right of the party.\u201d Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999) (internal quotation marks omitted); see N.C. Gen. Stat. \u00a7\u00a7 1A-1, Rule 54(b), 1-277, 7A-27(d) (1999). \u201cIn either instance, the burden is on the appellant \u2018to present appropriate grounds for this Court\u2019s acceptance of an interlocutory appeal and our Court\u2019s responsibility to review those grounds.\u2019 \u201d Romig, 132 N.C. App. at 685, 513 S.E.2d at 600 (quoting Jeffreys, 115 N.C. App at 379, 444 S.E.2d at 253).\nNorth Carolina Rule of Appellate Procedure 28(b) has been amended effective 31 October 2001 to add a new subsection, 28(b)(4), which requires that the brief contain \u201ca statement of the grounds for appellate review\u201d and when an appeal is interlocutory, \u201cthe statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.\u201d This amendment does not apply to briefs, as in this case, filed before the effective date.\nGenerally, appellate courts do not review discovery orders because of their interlocutory nature. See Romig, 132 N.C. App. at 685, 513 S.E.2d at 600. However, our Courts have recognized a narrow exception to this rule when a discovery order includes a finding of contempt or certain other sanctions. See id; Woody v. Thomasville Upholstery Inc., 146 N.C. App. -, 552 S.E.2d 202 (2001) (holding that a discovery order in workers\u2019 compensation case was not immediately appealable because there was no finding of contempt and no sanctions had been imposed); Willis v. Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976) (holding that a contempt order entered against defendant for not complying with discovery requirements was immediately appealable); but cf. Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577 (1999) (holding that a trial court\u2019s order compelling the disclosure of documents subject to an absolute statutory privilege affected a substantial right and was, thus, immediately appealable), disc. rev. denied, 352 N.C. 150, 544 S.E.2d 228 (2000). No such order was entered in this case. The trial court\u2019s order only compelled Mr. Joyner to answer the questions posed during the deposition; it did not assess sanctions or find defendant in contempt.\nIn their \u201cResponse to Plaintiff/Appellee\u2019s Motion to Dismiss Appeal,\u201d defendants have argued to this Court that the discovery order impairs a substantial right. See Sharpe, 351 N.C. at 163-65, 522 S.E.2d at 580-81; Romig, 132 N.C. App. at 686, 513 S.E.2d at 600. They base this argument on this Court\u2019s opinion in Evans v. United Servs. Auto. Ass\u2019n, 142 N.C. App. 18, 541 S.E.2d 782, cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001). In Evans, plaintiff requested information and documents from defendant during discovery, that defendant deemed excluded from discovery as work product and protected by attorney-client privilege. The trial court reviewed the questionable documents in camera, ordered that some of the documents should be produced, and found that others were protected \u201cby the attorney client privilege and/or are matters prepared in anticipation of litigation.\u201d Id. at 23, 541 S.E.2d at 785 (internal quotation marks omitted). Both parties appealed the trial court\u2019s decision. This Court determined that the appeal should proceed, even though appeals from discovery orders generally are interlocutory. See Romig, 132 N.C. App. at 685, 513 S.E.2d at 600. This Court noted the extent and import of the materials at issue, and decided that the trial court\u2019s order \u201caffects a substantial right.\u201d Evans, 142 N.C. App. at 24, 541 S.E.2d at 786. Defendants in this case urge us to apply Evans to find that we should hear their appeal, because it affects a substantial right. We believe this Court\u2019s holding in Evans is distinguishable and we decline to read it as defendants urge.\nWe reach this conclusion based on important differences between Evans and the case at issue. In Evans, defendant was asked to turn over an enormous amount of information about the internal processes and practices of defendant-company. This material included documents alleged to be protected under both the attorney-client privilege and work-product doctrine. Here, the discovery at issue consists of only a few questions posed during a deposition, which defendants\u2019 counsel instructed Mr. Joyner not to answer. From the record before us, it appears that defendants never presented their deposition answers to the judge in camera or under seal for a determination of the application of the privilege to the information. Defendants bear the burden of showing that this information sought was protected by attorney-client privilege, but our record is insufficient to determine whether that burden has been carried by defendants. See id. at 32, 541 S.E.2d at 791 (noting that \u201c[t]he burden of establishing the attorney-client privilege rests upon the claimant of the privilege\u201d). We do not read Evans as opening the door to appellate review of every contested discovery order in which attorney-client privilege is simply asserted, without more. A substantial right has not been shown to be at issue here, and we dismiss defendant\u2019s appeal as interlocutory.\n\u201cMotion to Dismiss Appeal as Interlocutory and Not Affecting a Substantial Right\u201d is granted.\nAppeal dismissed.\nJudges TIMMONS-GOODSON and TYSON concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by E. Fielding Clark, II and Forrest A. Ferrell, for plaintiff-appellee.", "Wyatt, Early, Harris & Wheeler, L.L.P., by William E. Wheeler, for defendant-appellants." ], "corrections": "", "head_matter": "ESMAY FRYE STEVENSON, by and through her Guardian, SYLVIA FRYE LONG, Plaintiff v. C. WAYNE JOYNER and wife, CAROL JEAN JOYNER, and CATAWBA VALLEY BANK and D. STEVE ROBBINS, Trustee, Defendants\nNo. COA01-237\n(Filed 2 January 2002)\nAppeal and Error\u2014 appealability \u2014 discovery order compelling answer to deposition questions \u2014 interlocutory order\nAlthough defendants appeal from a discovery order compelling them to answer questions proposed during a deposition by plaintiff in an action alleging claims including undue influence, fraud, and lack of mental capacity, the appeal is dismissed because the order is interlocutory and defendants have failed to demonstrate that a substantial right will be affected.\nAppeal by defendants from order entered 29 November 2000 by Judge Timothy S. Kincaid in Catawba County Superior Court. Heard in the Court of Appeals 5 December 2001.\nSigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by E. Fielding Clark, II and Forrest A. Ferrell, for plaintiff-appellee.\nWyatt, Early, Harris & Wheeler, L.L.P., by William E. Wheeler, for defendant-appellants." }, "file_name": "0261-01", "first_page_order": 291, "last_page_order": 294 }