Dworsky v. Travelers Insurance , 49 N.C. App. 446 ( 1980 )

271 S.E.2d 522 (1980) 49 N.C. App. 446

Phyllis D. DWORSKY and husband, Leon Dworsky
v.
The TRAVELERS INSURANCE COMPANY, a Corporation.

No. 8014SC349.

Court of Appeals of North Carolina.

November 4, 1980.

Upchurch, Galifianakis & McPherson by William V. McPherson, Jr., for plaintiffs-appellants.

Spears, Barnes, Baker & Hoof by Alexander H. Barnes, for defendant-appellee.

HEDRICK, Judge.

Plaintiffs' Appeal

Assuming arguendo that Judge Brewer had authority to consider and rule on plaintiffs' second motion to compel production of documents after a similar motion had been earlier denied by Judge McKinnon, we are compelled to hold that the appeal from Judge Brewer's order denying the second motion must be dismissed. G.S. § 1-277(a) in pertinent part provides: "An appeal may be taken from every judicial order or determination of a judge of a superior or district court, upon or involving a matter of law or legal inference, whether made in or out of session, which affects a substantial right claimed in any action or proceeding; ..." It has been held that orders denying or allowing discovery are not appealable since they are interlocutory and do not affect a substantial right which would be lost if the ruling were not reviewed before final judgment. First Union National Bank v. Olive, 42 N.C.App. 574, 257 S.E.2d 100 (1979). If, however, the desired discovery 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 material to a determination of the critical question to be resolved in the case, an order denying such discovery does affect a substantial right and is appealable. Tennessee-Carolina Transportation, Inc. v. Strick Corp., 291 N.C. 618, 231 S.E.2d 597 (1977). See also Starmount Co. v. City of Greensboro, 41 N.C.App. 591, 255 S.E.2d 267 (1979). Nevertheless, orders regarding discovery are within the discretion of the trial court and will not be upset on appeal absent a showing of abuse of discretion. Hudson v. Hudson, 34 N.C.App. 144, 237 S.E.2d 479, disc. review denied, 293 N.C. 589, 239 S.E.2d 264 (1977).

In the present case, plaintiffs were seeking the entire contents of a file maintained by defendant in connection with plaintiffs' insurance claim, with the sole exception of attorney correspondence and materials placed in the file subsequent to 12 September 1976. While some relevant and material evidence may be contained in the file, plaintiffs are not entitled to a fishing expedition to locate it. G.S. § 1A-1, Rule 26(b)(1); Willis v. Duke Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976). Moreover, the record in the instant case offers us no clue as to what relevant and material information, if indeed there is any, is sought. We must therefore conclude that plaintiffs have not shown that the information sought is so crucial to the outcome of this case that it would deprive them of a substantial right and thus justify an immediate appeal. See Starmount Co. v. City of Greensboro, supra. Accordingly, the trial judge has acted within his discretion and plaintiffs' appeal from his order will be dismissed.

Defendant's Cross-Assignment of Error

Defendant cross-assigned error to the denial of his Rule 12(b)(6) motion to dismiss plaintiffs' claim for treble damages. No appeal lies from a denial of a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); Godley Auction Co., Inc. v. Myers, 40 N.C. App. 570, 253 S.E.2d 362 (1979); O'Neill v. Southern National Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979). Defendant's motion to dismiss plaintiffs' claim for treble damages was a Rule 12(b)(6) motion and therefore defendant's assignment of error to the denial thereof will be dismissed.

Both appeals are

Dismissed.

ROBERT M. MARTIN and HARRY C. MARTIN, JJ., concur.