233 N.C. App. 145
N.C. Ct. App.2014Background
- Plaintiffs filed a third amended complaint alleging violations of the North Carolina Fair Housing Act, equal protection, and related statutes arising from rezoning to expand a landfill.
- Discovery sought depositions of former County Manager Marty Lawing and Commissioner William Sue; Brunswick County sought protective orders asserting immunity.
- Trial court on March 5, 2013 ordered the depositions with limits for Sue but not Lawing, explicitly recognizing Sue’s immunity in part.
- On May 6, 2013 the court held the March order non-appealable and again compelled Lawing’s deposition; notices of appeal followed.
- This Court stayed and ultimately dismissed the appeals as interlocutory, holding no substantial right was affected and that privilege could be asserted at deposition with court resolution of disputes as needed.
- The court emphasized that privilege objections could be raised at deposition and that the trial court would decide specific issues if an impasse occurred, preserving Lawing’s potential immunity protections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 5, 2013 order precludes Lawing’s immunity | Brunswick County contends the order denies immunity and is immediately appealable | Lawing’s immunity is not clearly resolved by the order and rights could be harmed | Orders do not preclude immunity; no immediate right of review |
| Whether the May 6, 2013 order affects a substantial right warranting immediate review | Brunswick County argues the order solidifies deprivation of rights | Order preserves ability to object to privileged matters at deposition | No substantial right affected; appeals dismissed as interlocutory |
| Whether the trial court properly preserved rules for privilege objections at deposition | Plaintiffs may compel with privilege considerations under Rule 26(b)(5) and 37(a) | Defendant may assert privilege if information is protected | Court allowed good-faith privilege objections and pending resolution by trial court as needed |
Key Cases Cited
- Goldston v. Am. Motors Corp., 326 N.C. 723 (1990) (no general right to immediate appeal from interlocutory orders; substantial right exception requires injury potential)
- Veazey v. City of Durham, 231 N.C. 357 (1950) (defines interlocutory status; sets framework for reviewability)
- Sharpe v. Worland, 351 N.C. 159 (1999) (substantial right test for appealability; two-part framework)
- Waters v. Qualified Personnel, Inc., 294 N.C. 200 (1978) (two-part test; substantial right must be affected to permit immediate appeal)
- N.C. Gen. Stat. § 1-277(a), statutory authority (2013) (statutory basis for recognizing appeal of interlocutory orders)
- Embler v. Embler, 143 N.C. App. 162 (2001) (discernment of privilege and discovery)