The Royal Oak Concerned Citizens Ass'n v. Brunswick Cnty. , 233 N.C. App. 145 ( 2014 )

NO. COA13-884
NO. COA13-885
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
THE ROYAL OAK CONCERNED CITIZENS
ASSOCIATION, MARK HARDY, CURTIS
MCMILLIAN and DENNIS MCMILLIAN,
Plaintiffs,
v. Brunswick County
Nos. 11 CVS 1301; 12 CVS 1138
BRUNSWICK COUNTY,
Defendant.
THE ROYAL OAK CONCERNED CITIZENS
ASSOCIATION, JAMES HARDY, CURTIS
MCMILLIAN and DENNIS MCMILLIAN,
Plaintiffs,
v.
BRUNSWICK COUNTY,
Defendant.
Appeals by defendant from orders entered 5 March and 6 May
2013 by Judge Mary Ann Tally in Brunswick County Superior Court.
Heard in the Court of Appeals 9 January 2014.
UNC Center for Civil Rights, by Elizabeth Haddix and Bethan
Eynon, Higgins & Owens, PLLC, by Raymond E. Owens, Jr., and
Fair Housing Project, Legal Aid of North Carolina, by Jack
Holtzman, for plaintiffs-appellees.
Womble Carlyle Sandridge & Rice, LLP, by Julie B. Bradburn,
Jacqueline Terry Hughes, and Kristen Y. Riggs, for
defendant-appellant.
HUNTER, JR., Robert N., Judge.
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Brunswick County (“Defendant”) appeals from interlocutory
orders compelling former Brunswick County Manager Marty Lawing
(“Mr. Lawing”) to appear for deposition. Defendant contends
that because the orders do not indicate that Mr. Lawing is
entitled to assert legislative and/or quasi-judicial immunity,
he has been denied a substantial right that warrants our
immediate review. For the following reasons, we disagree and
dismiss Defendant’s appeals.
I. Factual & Procedural History
On 3 June 2011, The Royal Oak Concerned Citizens
Association, Curtis McMillian, and Dennis McMillian
(collectively, “Plaintiffs”) began this action by filing a
complaint in Brunswick County Superior Court.1 Plaintiffs’
complaint was amended multiple times. Plaintiffs’ third amended
complaint, operative here, alleges violations of the North
Carolina Fair Housing Act, the Equal Protection Clause under
Article I, Section 19 of the North Carolina Constitution, and
N.C. Gen. Stat. § 153A-136(c). These causes of action stem from
1
The case number assigned to this action was Brunswick County
No. 11 CVS 1301. Plaintiff Mark Hardy originally filed a
separate action, Brunswick County No. 12 CVS 1138, which was
consolidated by the trial court with 11 CVS 1301. Hereafter,
use of the moniker “Plaintiffs” includes Mark Hardy.
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an alleged pattern and practice of racial discrimination by
Defendant, culminating in Defendant’s decision to rezone
property in Plaintiffs’ community to accommodate the expansion
of an existing landfill. The complaint also seeks a declaration
that Defendant’s rezoning of the property was unlawful, invalid,
and void.
During discovery, Plaintiffs noticed the depositions of Mr.
Lawing and former Brunswick County Commissioner William Sue
(“Mr. Sue”). Following Defendant’s refusal to produce Mr.
Lawing and Mr. Sue, Plaintiffs filed a motion to compel their
depositions. Defendant responded by filing a motion for a
protective order prohibiting the depositions on the grounds that
Mr. Lawing and Mr. Sue have legislative and quasi-judicial
immunity. Following a hearing on the matter, the trial court
filed a written order dated 5 March 2013 allowing Plaintiffs’
motion to compel. The order, in part, stated:
The Court will compel Mr. Sue and Mr. Lawing
to appear for depositions at a time that is
mutually convenient for the parties and the
attorneys but will set the following
conditions upon the deposition of former
County Commissioner William Sue:
a. William Sue is entitled to assert a
testimonial privilege.
b. The Plaintiffs are prohibited from
inquiring as to Mr. Sue’s intentions,
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motives, or thought processes with
respect to any quasi-judicial or
legislative matters clearly defined
by North Carolina law as such.
The order contained no conditions with respect to Mr. Lawing’s
deposition. On 4 April 2013, Defendant filed notice of appeal
from the order.2
Following Defendant’s notice of appeal, Plaintiffs again
noticed the deposition of Mr. Lawing and filed another motion to
compel Mr. Lawing’s deposition. By written order dated 6 May
2013, the trial court concluded that:
1. The March 5, 2013 order does not affect a
substantial right of Defendant’s that
would injure Defendant if not corrected
before appeal from final judgment, and
thus the order is a non-appealable
interlocutory order.
2. Therefore, a stay of this Court’s March 5,
2013 order is not warranted and the trial
court retains jurisdiction of this issue.
3. Defendant is again compelled to produce
County Manager Marty Lawing.
On 30 May 2013, Defendant filed notice of appeal from this order
as well.3
Following Defendant’s second notice of appeal, Defendant
2
Defendant’s appeal from the 5 March 2013 order is the subject
of COA13-885.
3
Defendant’s appeal from the 6 May 2013 order is the subject of
COA13-884.
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filed a petition for writ of supersedeas and a motion for a
temporary stay with this Court on 31 May 2013. By order entered
3 June 2013, we allowed the motion for a temporary stay. By
order entered 18 June 2013, we allowed the petition for writ of
supersedeas and stayed the 5 March and 6 May orders of the trial
court pending the outcome of Defendant’s appeals.
II. Jurisdiction
At the outset, we must determine whether this Court has
jurisdiction to hear Defendant’s interlocutory appeals.
Defendant contends that “[t]he trial court rejected out of hand
that [Mr.] Lawing was entitled to assert any form of immunity,
and testimonial privilege, at his deposition[,]” and that such
denial is immediately appealable as affecting a substantial
right. For the following reasons, we hold that the trial
court’s 5 March and 6 May 2013 orders do not preclude Defendant
from making good-faith objections to privileged information at
Mr. Lawing’s deposition. Consequently, no substantial right has
been affected and we dismiss Defendant’s appeals as
interlocutory.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.” Goldston v. Am. Motors
Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). “An
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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.” Veazey v. City of Durham,
231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Thus, because the
trial court’s orders compelling Mr. Lawing to testify did not
dispose of the case below, Defendant’s appeals are interlocutory
in nature.
However, an “immediate appeal is available from an
interlocutory order or judgment which affects a substantial
right.” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,
579 (1999) (quotation marks omitted); accord N.C. Gen. Stat. §§
1-277(a), 7A-27(d) (2013). Our Supreme Court has defined a
“substantial right” as “a legal right affecting or involving a
matter of substance as distinguished from matters of form: a
right materially affecting those interests which a [person] is
entitled to have preserved and protected by law: a material
right.” Sharpe, 351 N.C. at 162, 522 S.E.2d at 579 (quotation
marks and citation omitted) (alteration in original).
“Admittedly the ‘substantial right’ test for appealability
of interlocutory orders is more easily stated than applied. It
is usually necessary to resolve the question in each case by
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considering the particular facts of that case and the procedural
context in which the order from which appeal is sought was
entered.” Waters v. Qualified Personnel, Inc., 294 N.C. 200,
208, 240 S.E.2d 338, 343 (1978). “Essentially a two-part test
has developed—the right itself must be substantial and the
deprivation of that substantial right must potentially work
injury . . . if not corrected before appeal from final
judgment.” Goldston, 326 N.C. at 726, 392 S.E.2d at 736. “The
burden is on the appellant to establish that a substantial right
will be affected unless he is allowed immediate appeal from an
interlocutory order.” Embler v. Embler, 143 N.C. App. 162, 166,
545 S.E.2d 259, 262 (2001).
Here, Defendant contends that because the trial court’s
orders do not indicate that Mr. Lawing is entitled to assert
legislative and/or quasi-judicial immunity, he has been denied a
substantial right that warrants our immediate review. Defendant
invites this Court to decide, as a general matter, that “any
public official, [including a county manager,] is entitled to
assert immunity and the accompanying testimonial privilege as to
those actions which were taken in the sphere of legitimate
legislative or quasi-judicial activity.”
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As an initial matter, we note that claims of immunity,
including claims of legislative and quasi-judicial immunity,
affect a substantial right for purposes of appellate review.
Cf. Farrell ex rel. Farrell v. Transylvania Cnty. Bd. of Educ.,
199 N.C. App. 173, 176, 682 S.E.2d 224, 227 (2009) (stating that
“claims of immunity affect a substantial right entitled to
immediate appeal”). Moreover, we have held that individuals are
“entitled to absolute legislative immunity for all actions taken
in the sphere of legitimate legislative activity.” Northfield
Dev. Co., Inc. v. City of Burlington, 136 N.C. App. 272, 281,
523 S.E.2d 743, 749, aff’d in part, review dismissed in part,
352 N.C. 671, 535 S.E.2d 32 (2000) (quotation marks and
citations omitted). Individuals are also “entitled to absolute
quasi-judicial immunity for actions taken in the exercise of
their judicial function.” Id. “These immunities shield the
individual from the consequences of the litigation results and
provide a testimonial privilege.” Id. at 282, 523 S.E.2d at
749. Thus, to the extent that Mr. Lawing, as a county manager,
performed actions “in the sphere of legitimate legislative
activity” or “in the exercise [of a] judicial function,” we
understand Defendant’s desire to keep Mr. Lawing’s intentions
and motives with respect to such conduct privileged.
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However, Defendant’s contention that legislative and/or
quasi-judicial immunity has been deprived in this case is
premised on the assumption that the trial court’s orders
preclude Defendant from making good-faith objections based on
privilege at Mr. Lawing’s deposition. Indeed, at oral argument,
counsel for Defendant indicated that the trial court’s orders
summarily deny Defendant the ability to claim legislative and/or
quasi-judicial immunity during Mr. Lawing’s deposition. We find
no such exclusion in the trial court’s orders or in the
transcript of the motion hearing.
With respect to the trial court’s written orders, there are
no conclusions denying Mr. Lawing the ability to assert
legislative and/or quasi-judicial immunity. While the trial
court’s 5 March 2013 order does explicitly conclude that Mr. Sue
is entitled to legislative and/or quasi-judicial immunity, such
a conclusion does not necessarily deny the right to Mr. Lawing.
Furthermore, the transcript of the motion hearing supports this
interpretation of the trial court’s orders. Specifically, after
allowing the motion to compel, the trial court stated:
If there is an objection at a deposition, it
can be noted. And, again, it’s my
understanding of the rules that if the
parties feel that they’re at an impasse
during the taking of the deposition, that
there are provisions for the parties to go
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to the Court and ask for resolution of the
specific issue[.]
Plainly, the trial court contemplated the possibility that
Defendant could make good-faith objections based on legislative
and/or quasi-judicial immunity during Mr. Lawing’s deposition
and that any impasse between the parties would then be decided
by the trial court in the factual context in which it arises.
Furthermore, when discussing the contents of the written
order, the trial court stated:
I’m not comfortable signing an order that
says that Mr. Lawing is entitled to the
testimonial privilege, because I’m not sure
if that’s the law[.]
Thus, the trial court expressed reservation in deciding whether
Mr. Lawing is entitled to legislative and/or quasi-judicial
immunity. Given this reservation, it would be inconsistent to
presume that the trial court was definitively precluding Mr.
Lawing’s entitlement to immunity in its written orders. Rather,
the more consistent interpretation of the trial court’s orders
is that Defendant may object on behalf of Mr. Lawing if the
information sought in Plaintiffs’ questioning was generated
either “in the sphere of legitimate legislative activity” or “in
the exercise [of a] judicial function.” Id. at 281, 523 S.E.2d
at 749.
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We therefore hold that the trial court’s orders do not
preclude Defendant from making objections based on privilege at
Mr. Lawing’s deposition if Defendant has a good-faith basis to
believe that the information is protected by legislative or
quasi-judicial immunity. Whether Mr. Lawing, as a county
manager, actually performed actions “in the sphere of legitimate
legislative activity” or “in the exercise [of a] judicial
function” is not properly before us at this time. Once a
specific question has been propounded by Plaintiffs to Mr.
Lawing at the deposition, the trial court can properly decide
whether the information sought is protected by privilege.
Moving forward, we note that if Defendant withholds
information at Mr. Lawing’s deposition that would otherwise be
discoverable by claiming that the information is privileged,
Defendant must “(i) expressly make the claim and (ii) describe
the nature of the documents, communications, or tangible things
not produced or disclosed, and do so in a manner that, without
revealing information itself privileged or protected, will
enable other parties to assess the claim.” N.C. R. Civ. P.
26(b)(5). Furthermore, if Mr. Lawing fails to answer a question
at the deposition based on a claim of privilege, and the parties
reach an impasse as to whether the claim of privilege applies,
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Plaintiffs may move for an order compelling an answer pursuant
to N.C. R. Civ. P. 37(a).4 However, “[i]f the court denies the
motion in whole or in part, it may make such protective order as
it would have been empowered to make on a motion made pursuant
to Rule 26(c).” N.C. R. Civ. P. 37(a)(2); see also N.C. R. Civ.
P. 26(c) (providing that the protective order can, among other
things, order “(i) that the discovery not be had; (ii) that the
discovery may be had only on specified terms and conditions[;
and] . . . (iv) that certain matters not be inquired into, or
that the scope of the discovery be limited to certain matters”).
Accordingly, because we hold that the trial court’s orders
do not preclude Defendant from making good-faith objections
based on privilege at Mr. Lawing’s deposition, Defendant has not
been deprived of any right nor suffered injury warranting our
immediate review.
III. Conclusion
For the foregoing reasons, we dismiss Defendant’s appeals
as interlocutory.
DISMISSED.
4
At the discretion of the trial court, telephoning the judge
during the deposition may be an appropriate solution if a matter
arises to which to the parties feel an immediate decision is
required. North Carolina AIC Civil Procedure Pretrial 2 § 24:14
(1998).
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Judges STROUD and DILLON concur.