{ "id": 4277969, "name": "BATESVILLE CASKET COMPANY, INC. an Indiana corporation, Plaintiff v. WINGS AVIATION, INC., d/b/a MOODY FUNERAL HOME, a North Carolina corporation, Defendant", "name_abbreviation": "Batesville Casket Co. v. Wings Aviation, Inc.", "decision_date": "2011-08-16", "docket_number": "No. COA10-967", "first_page": "447", "last_page": "459", "citations": [ { "type": "official", "cite": "214 N.C. App. 447" } ], "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": "613 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632948 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "300" }, { "page": "300" }, { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0298-01" ] }, { "cite": "638 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637360, 12637361, 12637359 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0462-02", "/se2d/638/0462-03", "/se2d/638/0462-01" ] }, { "cite": "633 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636450 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "479", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0474-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-368", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "providing that imprisonment is an appropriate punishment for contempt" } ], "opinion_index": 0 }, { "cite": "170 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006115 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "569" }, { "page": "569" }, { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0564-01" ] }, { "cite": "574 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "71", "parenthetical": "\"The appeal of any contempt order . . . affects a substantial right and is therefore immediately appealable.\"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249235 ], "year": 2002, "pin_cites": [ { "page": "158", "parenthetical": "\"The appeal of any contempt order . . . affects a substantial right and is therefore immediately appealable.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0154-01" ] }, { "cite": "432 S.E.2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529089, 2531429, 2529931, 2532669, 2530045 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0166-03", "/nc/334/0166-05", "/nc/334/0166-04", "/nc/334/0166-02", "/nc/334/0166-01" ] }, { "cite": "428 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526100 ], "year": 1993, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0636-01" ] }, { "cite": "586 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2003, "pin_cites": [ { "page": "549-50" }, { "page": "592" }, { "page": "550", "parenthetical": "emphasis added" }, { "page": "592" }, { "page": "550" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 590", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957673 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "591-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0590-01" ] }, { "cite": "360 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788965, 3789770, 3792846, 3789742, 3786224, 3792049, 3798111 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0644-05", "/nc/360/0644-01", "/nc/360/0644-02", "/nc/360/0644-07", "/nc/360/0644-04", "/nc/360/0644-06", "/nc/360/0644-03" ] }, { "cite": "178 N.C. App. 489", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8378438 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/178/0489-01" ] }, { "cite": "676 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "103", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166004 ], "year": 2009, "pin_cites": [ { "page": "637", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0627-01" ] }, { "cite": "111 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "251 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625533 ], "year": 1959, "pin_cites": [ { "page": "345" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0344-01" ] }, { "cite": "273 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "301 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569785 ], "year": 1981, "pin_cites": [ { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0561-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-352.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 12, "pin_cites": [ { "parenthetical": "emphasis added" }, { "parenthetical": "\"Any person who disobeys an order of the court may be punished by the judge as for a contempt under the provisions of G.S. 1-368.\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1040, "char_count": 26975, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14357497290382568 }, "sha256": "5988df8aaabfa466a5a528815aac5b2c519dd51238d1d1898b37022c5d91ee02", "simhash": "1:0b281be97c7a9248", "word_count": 4342 }, "last_updated": "2023-07-14T17:33:33.584356+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR., Robert N. and THIGPEN concur." ], "parties": [ "BATESVILLE CASKET COMPANY, INC. an Indiana corporation, Plaintiff v. WINGS AVIATION, INC., d/b/a MOODY FUNERAL HOME, a North Carolina corporation, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals trial court orders appointing a receiver and awarding sanctions to plaintiff. For the following reasons, we dismiss defendant\u2019s appeal regarding the appointment of a receiver and reverse those portions of the orders regarding sanctions.\nI. Background\nOn 7 August 2008, plaintiff obtained a monetary judgment against defendant. On or about 16 September 2008, a writ of execution was issued seeking satisfaction of the judgment, but on or about 11 December 2008 the Jackson County Sheriff returned the writ because he \u201cdid not locate property on which to levy.\u201d On 11 March 2009, Plaintiff served defendant with \u201cPLAINTIFF\u2019S INTERROGATORIES AND REQUESTS FOR PRODUCTION IN AID OF EXECUTIONS\u201d Defendant failed to respond to the interrogatories within 30 days, as required by N.C. Gen. Stat. \u00a7 1-352.1, and plaintiff filed \u201cPLAINTIFF\u2019S MOTION PURSUANT TO N.C.G.S. SECTION 1-352.1 et. seq. FOR DISCOVERY OF ASSETS[.]\u201d\nOn 16 July 2009, the clerk of superior court of Jackson County entered an order which required defendant to:\n1. Produce at the office of plaintiff\u2019s counsel all documents and things requested in plaintiff\u2019s Requests for Production within fifteen (15) days of the date of this order;\n2. Respond fully to plaintiff\u2019s Interrogatories within fifteen (15) days of the date of this order.\n3. Submit to an inspection of defendant\u2019s offices and grounds located at 714 W. Main Street, Sylva, NC [(\u201cMoody Funeral Home\u201d) on August 4, 2009 beginning at 10:00 a.m.; and\n4. Defendant\u2019s principal shall appear before the Clerk of Court for oral examination on August 4, 2009 at 12:30 p.m.\n(\u201cDiscovery Order\u201d). The record does not indicate how, when or if the Discovery Order was served upon defendant or its principal.\nOn 4 August 2009, plaintiff filed \u201cPLAINTIFF\u2019S RENEWED MOTION TO COMPEL, FOR SANCTIONS, AND FOR THE APPOINTMENT OF A RECEIVER\u201d because defendant \u201crefused to cooperate in any manner and refused to respond to plaintiff\u2019s requests and to comply with the Court Order.\u201d On or about 19 November 2009, defendant responded in part to plaintiff\u2019s discovery requests, but did not provide \u201cbank account statements\u201d and noted that \u201cthere are no current bank accounts for Wings[.]\u201d Defendant further noted that\nBB&T foreclosed on its liens with respect to both the Moody Funeral Home realty and the business equipment and other related property. It is my understanding that Coward, Hicks & Siler, PA. was the purchaser of the entirety.\nIt is also my understanding that, at this time, Wings Aviation, Inc. hold title only to the two cemeteries discussed in Mr. Moody\u2019s deposition, and that any funds received from the sale of lots are expended in connection with maintenance of those cemeteries. There was precious little, if any, other personalty held by the corporation, according to Mr. Moody.\nDefendant also asserted that\nReginald E. Moody, d/b/a Moody Services, leases the property known as Moody Funeral Home and Crematorium from Coward, Hicks & Siler, P.A. Defendant has no ownership interest in Moody Services, but Reginald E. Moody, Jr. is the President of the Defendant, and the Defendant, through Mr. Moody, conducts business for the cemeteries from the Funeral Home location. Defendant pays no rent and has no formal sublease with Mr. Moody.\nOn 31 December 2009, the trial court entered an order (\u201cReceivership Order\u201d) granting \u201cPLAINTIFF\u2019S RENEWED MOTION TO COMPEL, FOR SANCTIONS, AND FOR THE APPOINTMENT OF A RECEIVER\u201d. The trial court ordered the receiver, Sheila Gahagan, CPA, to \u201center upon and take possession and control of the business at 714 W. Main Street in Sylva.\u201d The Receivership Order further\nacknowledged that defendant\u2019s principal has claimed that he is still conducting business in the same location under a slightly different name. However, nothing, including the signage, has changed and it appears that business is and has been conducted under the fictitious name \u201cMoody Funeral Home.\u201d The receiver shall have the power and authority to review all transactions and report concerning what business has been transacted and what business continues to be transacted, including all transactions relating to the two cemeteries which remain in the defendant\u2019s formal corporate name. It is also acknowledged that defendant no longer owns the real property at 714 W. Main Street, but it has acknowledged to this Court that it is still using that location for its current activities pursuant to an agreement with the current owner, that it continued to conduct business in that location even after the transfer of the property to the current owner, and that there has been no real change in the operations, other than the volume of business, since the time of the filing of this action.\nOn 13 January 2010, plaintiff\u2019s counsel submitted attorney fee affidavits as directed by the Receivership Order.\nOn 20 January 2010, Coward, Hicks & Siler, P.A., as counsel for REM, Inc., filed a motion to intervene pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 24(a) and a motion to vacate the Receivership Order pursuant to Rule 60(b). REM alleged that it owns Moody Funeral Home, but \u201cdoes not own or control the Defendant.\u201d REM claimed that it was previously defendant\u2019s landlord, but it had evicted defendant. REM requested \u201cin the alternative\u201d that the receivership be limited to \u201cthe business only, and not the real property where the business was previously conducted, to the effect that the receiver would not have possession of the real property and its improvements.\u201d On 3 February 2010, the trial court allowed REM to intervene.\nOn 25 January 2010, defendant filed a \u201cMOTION FOR RELIEF FROM ORDER AND FOR STAY\u201d alleging that the receivership order is void because it calls for the receiver to\n\u2018take possession and control of the business at 714 W. Main Street in Sylva\u2019, when the evidence before the Court is that \u2018the business at 714 W. Main Street in Sylva\u2019 is not owned by the named Defendant in this action, but instead by a third party, not a party to this action, and not subject to the jurisdiction of the Court in this action.\nDefendant further alleged that it did \u201cnot possess the necessary licenses to provide funeral home services \u2014 the licenses that permit the operation of the funeral home business at 714 West Main Street in Sylva, are in the name of Reginald E. Moody, Jr., not a party to this action.\u201d\nOn 28 January 2010, defendant filed notice of appeal from the Receivership brder. On 12 February 2010, the trial court entered an order awarding sanctions in the amount of $3,300.00 to plaintiff, based upon the Receivership Order arid the attorney fee affidavits submitted as directed by the Receivership Order (\u201cSanctions Order\u201d). On 25 February 2010, defendant filed notice of appeal from the Sanctions Order. On 8 March 2010, the trial court entered an order staying any action upon defendant\u2019s \u201cMOTION FOR RELIEF FROM ORDER AND FOR STAY\u201d and plaintiff\u2019s \u201cMOTION FOR Contempt and Motion for Additional Sanctions[.]\u201d\nII. Interlocutory Receivership Order\nDefendant\u2019s first two issues on appeal are regarding the appointment of the receiver in the Receivership Order. Defendant\u2019s brief states that \u201c[t]he Order required the receiver to conduct an accounting and to report back to the Court; as such, the Order is interlocutory.\u201d However, defendant claims that the Receivership\nOrder provided broad authority to the receiver both with respect to the ongoing business operations of Defendant-Appellant (Wings Aviation, Inc.), but also with respect to the rights of third parties, not before the Court at the time the receivership was ordered (including REM, Inc., which was later permitted to intervene.)\nDefendant contends\nsubstantial rights have been affected, particularly where the receiver expresses an intent to begin the process of selling the assets to pay off the corporation\u2019s debts . . . and where as here, the receiver has failed to file the necessary annual reports with the Secretary of State to avoid administrative dissolution.. . . Without immediate review, [its] assets and corporate opportunities may be lost or irreparably prejudiced.\n. . . [T]he Appellant here has a substantial right in managing its own corporation. [Defendants\u2019] right to manage and control its business will be effectively destroyed by the appointment of a receiver, who has far-reaching powers under Judge Guice\u2019s [Receivership 0]rder of 29 December 2009. . . . The receivership will result in a disruption in and perhaps the complete destruction of [defendant\u2019s] business, and thus the normal course of procedure is inadequate to protect the substantial right affected by the order sought to be appealed. ... If the appeal is not immediately heard from the order appointing a receiver, Defendant-Appellant\u2019s business and ability to produce income may be destroyed and its reputation irreparably harmed.\n(Quotation marks, brackets, and footnote omitted.) Defendant also claims that interlocutory appeals from orders appointing receivers have previously been considered by the appellate courts, \u201cthereby implying without establishing that such orders inherently affect substantial rights. See, e.g., Lowder v. All Star Mills, Inc., 301 N.C. 561, 581, 273 S.E.2d 247, 259 (1981); York v. Cole, 251 N.C. 344, 345, 111 S.E.2d 334, 335 (1959).\u201d (Quotation marks and brackets omitted.)\nPlaintiff argues that appellant\u2019s cited cases \u201carise from the appointment of a receiver pre-judgment. In the case at hand, a judgment has already been entered against the Appellant. The concerns of appointing a receiver prior to a judgment are not present in this case where [plaintiff] already has a judgment].]\u201d Plaintiff also notes that \u201cthe substantial right [defendant] is arguing does not belong not to [defendant], but to third parties.\u201d\nAn 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.\nAn interlocutory order is generally not immediately appealable.\nNonetheless, in two instances a party is permitted to appeal interlocutory orders. First, a party is permitted to appeal from an interlocutory order when the trial court enters 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. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant\u2019s burden to present appropriate grounds for this Court\u2019s acceptance of an interlocutory appeal and our Court\u2019s responsibility to review those grounds.\nBullard v. Tall House Bldg. Co., 196 N.C. App. 627, 637, 676 S.E.2d 96, 103 (2009) (citations and quotation marks omitted). As the trial court did not certify the Receivership Order, we consider whether a substantial right will be impaired. See id. While \u201c[o]ur courts have on several occasions considered interlocutory appeals of appointments of receivers without expressly addressing the issue of whether the appellant established a substantial right . . . whether there is a substantial right is normally assessed on a case-by-case basis.\u201d Barnes v. Kochhar, 178 N.C. App. 489, 496 n.2, 633 S.E.2d 474, 479 n.2, disc. review denied, 360 N.C. 644, 638 S.E.2d 462 (2006).\nIn determining whether an issue affects a substantial right, our Supreme Court has stated that the substantial right test for appealability of interlocutory orders is more easily stated than applied. Our courts apply a two-part test in determining whether a substantial right exists: 1) that the right in question qualifies as substantial and 2) that, absent immediate appeal, the right will be lost, prejudiced or less than adequately protected by exception to entry of the interlocutory order. A substantial right is a legal right affecting or involving a matter of substance as distinguished from matters of form: a right materially affecting those interests which a man is entitled to have preserved and protected by law: a material right. It is usually necessary to resolve the question of whether there is a substantial right in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.\nId. at 497, 633 S.E.2d at 479 (citations, quotation marks, and brackets omitted).\nIn Barnes v. St. Rose Church of Christ, the defendants\n[a]ppeal[ed] from (A) a preliminary injunction filed 13 September 2002 freezing the assets of St. 'Rose Church of Christ, Disciples of Christ (\u201cthe church\u201d) and appointing a receiver to handle the financial affairs of the church, and (B) an order filed 13 September 2002 granting the receiver specific powers to administer the church\u2019s financial affairs. . . .\n. . . Plaintiff requested that the trial court enjoin the transfer of assets and appoint a receiver to manage the church\u2019s finances and assets.\n. . . [The] defendants note[d] several effects of the preliminary injunction and generally argue [d] that the appointment of a receiver prevents them from conducting their own business.\n160 N.C. App. 590, 591-92, 586 S.E.2d 548, 549-50 (2003). This Court determined that\n[assuming that the trial court\u2019s interlocutory orders do involve a substantial right by preventing defendants from conducting their own business, defendants have failed to show that the preliminary injunction and appointment of the receiver will potentially result in any harm. In fact, the orders themselves are designed to maintain the status quo of the church\u2019s finances during this litigation by placing the assets of the church and control of the day to day finances in the hands of a neutral party until this litigation involving control of those assets and finances is completed.\nThe order specifying the powers of the receiver authorizes the receiver to pay the ordinary operating expenses of the church as well as salary and a housing allowance for [a defendant], prohibits the church from incurring new liabilities, and allows the receiver to continue the collection of donations. Thus, the day to day operation of the church is not halted by the trial court\u2019s orders, and the effect of the orders is to prevent removal of the church\u2019s assets prior to a determination of which entity and set of bylaws properly controls the affairs of the church in order to prevent any potential harm to the assets of the church. Therefore, there is no substantial right of defendants that will be lost or irremediably and adversely affected prior to a determination on the merits. Accordingly this appeal is dismissed as interlocutory and not affecting a substantial right.\nId. at 592, 586 S.E.2d at 550 (emphasis added) (citation omitted).\nHere, the Receivership Order requires the receiver:\ni. To enter upon and take possession and control of the business . . . [and] shall have the power and authority to review all transactions and report concerning what business has been transacted and what business continues to be transactedf;]\nii. To take control of all accounts and business transactions, together with all accounts, records, correspondence, and books of accounts relating thereto;\niii. To conduct and/or oversee and control the day-to-day operations of the business in a manner consistent with the power conferred upon this order and consistent with N.C.G.S. section 1-501;\niv. To obtain from the defendant an accounting of the business operations and statements setting forth the budgeted annual and monthly operating expenses, as well as statements, bills, charges, invoices, paid receipts and any similar documents sufficient to demonstrate the actual operating expenses of the business;\nv. To collect all revenues and receipts derived from the business, to pay the current operating expenses (including the costs of administration of the receivership and the premium for the receiver\u2019s bond), in accordance with a budget approved by this Court, on a monthly basis;\nvi. To maintain an accurate ledger or similar book of account of all receipts and disbursements made by it pursuant to this Order of appointment, and to safely keep the operating statements and all of the documents provided to it;\nvii. To obtain any and all permits for the ongoing operation of the business;\nviii. To employ attorneys, accountants, other professionals, managing agents, leasing agents, and other persons, firms or corporations necessary or appropriate to the orderly and efficient management of the business;\nix. To enforce contracts and take such action with respect to contracts as may be necessary and appropriate to assure collection and/or payment of such for the orderly and efficient management and operation of the Premises;\nx. To renew and extend supply agreements for the business upon such terms and subject to such conditions as the receiver shall deem appropriate;\nxi. To make all necessary and proper maintenance, repairs, renewals, replacements, additions, betterments and improvements to the business and to purchase or otherwise acquire additional fixtures and personal property necessary or appropriate to the orderly and efficient management and operation of the property and business;\nxii. To keep the business and premises insured to the extent necessary or appropriate and to pay for judgments, insurance, taxes, and assessments;\nxiii. To maintain, preserve, and make necessary repairs to the business property and premises during the pendency of these proceedings and until the underlying indebtedness has been satisfied in full; and\nxiv. To be vested with all other powers, rights, and duties usually bestowed upon receivers appointed by this Court as by law provided.\nJust as in Barnes v. St. Rose Church of Christ, \u201cthe day to day operation of the [business] is not halted by the trial court\u2019s' order[], and the effect of the orders is to prevent... any potential harm to the assets of the [business].\u201d Id. Furthermore, Barnes v. St. Rose Church of Christ, addresses the appointment of a receiver prior to entry of a judgment. See id., 160 N.C. App. 590, 586 S.E.2d 548. In a case where it has yet to be determined if the plaintiff is entitled to recovery, protection of the defendant\u2019s business or assets would be of much greater concern than here, where there is an unsatisfied judgment against defendant, and had the sheriff found any property upon which to levy, he could have seized that property to satisfy the judgment; certainly, a successful levy would have caused more harm to the business than the receivership as ordered by the trial court. \u201cTherefore, there is no substantial right of defendant]] that will be lost or irremediably and adversely affected prior to a determination on the merits. Accordingly this appeal is dismissed as interlocutory and not affecting a substantial right.\u201d Id. at 592, 586 S.E.2d at 550.\nIII. Sanctions\nDefendant\u2019s last argument on appeal is regarding the sanctions it was ordered to pay; defendant\u2019s contentions on appeal are regarding both the sanctions portion of the Receivership Order and the Sanctions Order itself. While the portion of the Receivership Order addressing the receiver was interlocutory, \u201can order imposing sanctions under Rule 37(b) is appealable as a final judgment.\u201d Smitheman v. Nat\u2019l Presto Indus., 109 N.C. App. 636, 640, 428 S.E.2d 465, 468, disc. review denied, 334 N.C. 166, 432 S.E.2d 366 (1993). We also note that orders imposing penalties for contempt of court are also immediately appealable. Guerrier v. Guerrier, 155 N.C. App. 154, 158, 574 S.E.2d 69, 71 (2002) (\u201cThe appeal of any contempt order . . . affects a substantial right and is therefore immediately appealable.\u201d) Thus, even though the orders do not state the statutory basis for the award of attorney fees as a sanction, they are orders establishing a penalty which is analogous to an order under Rule 37(b), and therefore we will consider defendant\u2019s argument as to the Sanctions.\nAs to the sanctions portion of the Receivership Order defendant specifically argues that \u201c[t]here is no evidence in the record on appeal that the Clerk\u2019s 16 July 2009 order was served on the judgment debtor in the manner as required for a summons[.]\u201d N.C. Gen. Stat. \u00a7 1-352.1 provides in pertinent part that\n[ujpon failure of the judgment debtor to answer fully the written interrogatories, the judgment creditor may petition the court for an order requiring the judgment debtor to answer fully, which order shall be served upon the judgment debtor in the same manner as a summons is served pursuant to the Rules of Civil Procedure[.]\nN.C. Gen. Stat. \u00a7 1-352.1 (2009) (emphasis added). \u201cThe use of the word \u2018shall\u2019 by our Legislature has been held by this Court to be a mandate, and the failure to comply with this mandate constitutes reversible error.\u201d In re Z.T.B., 170 N.C. App. 564, 569, 613 S.E.2d 298, 300 (2005).\nWe first must consider how a summons is served as N.C. Gen. Stat. \u00a7 1-352.1 requires that the order entered pursuant to N.C. Gen. Stat. \u00a7 1-352.1 be served \u201cin the same manner as a summons is served[.]\u201d N.C. Gen. Stat. \u00a7 1-352.1. A summons, Unlike motions or other documents filed after a summons, must be served in a particular manner depending on the party being served. See N.C.R. Civ. Pro. 4, 5. Furthermore, a person who fails to respond to discovery requested pursuant to N.C. Gen. Stat. \u00a7 1-352.1 is subject to contempt of court and may even be punished by imprisonment. See N.C. Gen. Stat. \u00a7 1-352.1 (\u201cAny person who disobeys an order of the court may be punished by the judge as for a contempt under the provisions of G.S. 1-368.\u201d); see also N.C. Gen. Stat. \u00a7 1-368 (2009) (providing that imprisonment is an appropriate punishment for contempt). Thus, N.C. Gen. Stat. \u00a7 1-352.1 has both heightened requirements for service and compliance as compared to other forms of discovery requests which occur prior to entry of a judgment. See N.C. Gen. Stat. \u00a7 1-352.1; N.C.R. Civ. Pro. 5.\nIn the record before us there is no evidence that the Discovery Order was \u201cserved upon the judgment debtor in the same manner as a summons is served pursuant to the Rules of Civil Procedure\u201d or that it was served at all. N.C. Gen. Stat. \u00a7 1-352.1; see N.C.R. App. P. 9(a)(l)(j) (\u201cThe record on appeal in civil actions and special proceedings shall contain . . . copies of all other papers filed and statements of all other proceedings had in the trial court which are necessary to an understanding of all issues presented on appeal[.]\u201d) As the record does not demonstrate that defendant was properly served with the Discovery Order as required by N.C. Gen. Stat. \u00a7 1-352.1, see In re Z.T.B., 170 N.C. App. at 569, 613 S.E.2d at 300, and as the trial court awarded sanctions based upon defendant\u2019s noncompliance with the Discovery Order, we reverse the portion of the Receivership Order addressing sanctions. See In re Z.T.B., 170 N.C. App. at 569, 613 S.E.2d at 300. As we are reversing the sanctions portion of the Receivership Order, we need not address defendant\u2019s argument regarding the Sanctions Order.\nIV. Conclusion\nFor the foregoing reasons, we dismiss defendant\u2019s appeal as to appointment of a receiver by the 31 December 2009 Receivership Order and reverse the sanctions portion of the 31 December 2009 Receivership Order and the 12 February 2010 Sanctions Order.\nDISMISSED IN PART; REVERSED IN PART.\nJudges HUNTER, JR., Robert N. and THIGPEN concur.\n. Coward, Hicks, & Siler, P.A. also represents Mr. Moody, Sr. and REM, Inc.\n. As to sanctions the trial court specifically ordered: \u201c[Defendant shall be sanctioned in the amount of plaintiff\u2019s fees and costs associated with the plaintiff\u2019s pursuit of that information, including the fees associated with plaintiff\u2019s counsel\u2019s court information, including the fees associated with plaintiff\u2019s counsel\u2019s court appearances. Plaintiff shall submit to the Court an affidavit of the fees it has incurred relating to this specific issue within thirty (30) days of the date of this Order, and the Court will make the actual award in a subsequent order after reviewing the additional information.\u201d\n. Plaintiffs \u201cMOTION FOR Contempt and Motion for Additional Sanctions\u201d is not part of the record on appeal.\n. REM has not appealed nor filed any documents with this Court, and thus is not a party to this appeal. As such, we will only consider defendant\u2019s arguments in regard to defendant\u2019s own rights, not those of third parties. Defendant cites to no authority nor are we aware of any which allows this Court to address issues as to non-parties to this action or parties who have not appealed. This extends also to defendant\u2019s first argument on appeal which addresses the personal jurisdiction of the court over other parties.\n. Defendant has mischaracterized the record. The record does not indicate that \u201cthe receiver has failed to file the necessary annual reports with the Secretary of State[,]\u201d but states that defendant\u2019s president failed to do so. The receiver noted that \u201cMr. Moody, Jr. provided a letter for Notice or Grounds for Administrative Dissolution of Wings Aviation, dated March 3, 2010 from the NC Department of the Secretary of State. This is simply due to his failure to file required annual reports and is easily remedied. Mr. Moody, Jr. cannot dissolve the corporation without being in violation of the NC laws pertaining to the sale of cemeteries.\u201d\n. Furthermore, the parties have not addressed the issue of waiver of service.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Jeffrey W. Norris & Associates, PLLC, by Jeffrey W. Norris, for plaintiff-appellee.", "Jones, Key, Melvin & Patton, P.A., by Fred H. Jones and Karen L. Kenney, for defendant-appellant." ], "corrections": "", "head_matter": "BATESVILLE CASKET COMPANY, INC. an Indiana corporation, Plaintiff v. WINGS AVIATION, INC., d/b/a MOODY FUNERAL HOME, a North Carolina corporation, Defendant\nNo. COA10-967\n(Filed 16 August 2011)\n1. Appeal and Error \u2014 interlocutory orders and appeals\u2014 receiver appointed \u2014 no substantial right affected\u2014 dismissed\nDefendant\u2019s appeal from the trial court\u2019s order appointing a receiver was dismissed as interlocutory as there was no substantial right of defendant that would have been lost or irremediably and adversely affected prior to a determination on the merits.\n2. Discovery \u2014 discovery order \u2014 sanctions for noncompliance \u2014 defendant not properly served\nThe trial court erred in an action concerning the payment of a monetary judgment by awarding sanctions based upon defendant\u2019s noncompliance with a discovery order. The record did not demonstrate that defendant was properly served with the discovery order as required by N.C.G.S. \u00a7 1-352.1.\nAppeal by defendant from orders entered 31 December 2009 and 12 February 2010 by Judge Zoro J. Guice in Superior Court, Jackson County. Heard in the Court of Appeals 10 March 2011.\nJeffrey W. Norris & Associates, PLLC, by Jeffrey W. Norris, for plaintiff-appellee.\nJones, Key, Melvin & Patton, P.A., by Fred H. Jones and Karen L. Kenney, for defendant-appellant." }, "file_name": "0447-01", "first_page_order": 457, "last_page_order": 469 }