Medlin v. N.C. Specialty Hosp., LLC , 233 N.C. App. 327 ( 2014 )

NO. COA13-818
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
JERRY M. MEDLIN,
Plaintiff,
v. Durham County
No. 11-CvS-1525
NORTH CAROLINA SPECIALTY HOSPITAL,
LLC, TIMOTHY N. YOUNG, and NORTH
CAROLINA EYE, EAR, NOSE & THROAT,
P.A.,
Defendants.
Appeal by defendant North Carolina Specialty Hospital, LLC
from orders entered 11 March 2013 and 14 March 2013 by Judge
Paul G. Gessner in Superior Court, Durham County. Heard in the
Court of Appeals 12 December 2013.
Bill Faison, for plaintiff-appellee.
Brown Law LLP, by Gregory W. Brown and Amy H. Hopkins, for
defendant-appellant North Carolina Specialty Hospital, LLC.
STROUD, Judge.
Defendant North Carolina Specialty Hospital, LLC appeals
orders addressing various motions regarding pretrial matters.
For the following reasons, we affirm and remand to the trial
court for determination of the reasonable amount of attorney
fees incurred by plaintiff in responding to this appeal.
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I. Background
On 5 January 2011, plaintiff filed a verified complaint
against defendants for medical malpractice arising from
plaintiff’s cataract surgery, which was performed by defendant
Timothy N. Young, an employee of defendant North Carolina Eye,
Ear, Nose & Throat, P.A. Plaintiff alleged that he suffered
permanent damage to his eye and extreme pain as a result of the
negligent use of Methylene Blue in his eye. Methylene Blue is
known to be toxic to the eye, but it was mistakenly used instead
of VisionBlue, a non-toxic stain intended for use in eye
surgery. On or about 21 March 2011, defendant North Carolina
Specialty Hospital, LLC (“defendant Hospital”) answered
plaintiff’s complaint by denying liability and asserting three
“affirmative defenses,” stated as a non-specific failure “to
state facts sufficient to constitute a cause of action[;]” “all
applicable statutes of limitation and repose[;]” and
“[p]laintiff’s failure to comply with Rule 9(j) of the North
Carolina Rules of Civil Procedure.” Various pretrial motions,
many involving discovery, ensued, and we will discuss only those
relevant for purposes of this appeal.
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On or about 7 March 2013, the trial court signed an order
(“Order 1”) addressing pretrial motions made by the parties.
The order provided that
the Court allows the Plaintiff’s Motion to
Shorten Time for giving notice of this
hearing so that the hearing may go forward.
Moreover, the Court in its discretion and
pursuant to Paragraph 13 of the Consent
Amended Discovery Scheduling Order of 3
October 2012 extends the time set forth in
Paragraph 6 of that Order through and
including March 8, 2013. In its discretion
the Court denies the Hospital’s Motion For
Protective Order regarding depositions
noticed for March 8, 2013, and further in
its discretion orders that the depositions
of Joy Boyd and Cathy Pruitt and Randy
Pisko, and the Civil Procedure Rule 30(b)(6)
Deposition of the Hospital . . . [shall go
forward prior to 15 March 2013] under the
terms and conditions as noticed by the
Plaintiff.
Plaintiff’s Motion to Compel Discovery
is noticed for hearing March 11, 2013. To
the extent Hospital’s Motion For Protective
Order is directed at the Notice of Hearing
and/or the timing of the Notice of Hearing
for March 11, 2013, in the Court’s
discretion the time for giving notice is
shortened to the time when it was given, and
Hospital’s Motion is denied, and hearing on
Plaintiff’s Motion to Compel Discovery shall
go forward on March 11, 2013 as noticed.
The Court has not taken up the substantive
issues raised by the Plaintiff’s Motion to
Compel or the Hospital’s Motion for
Protective Order relating to the Plaintiff’s
Motion to Compel, leaving those matters for
hearing on March 11, 2013.
On 14 March 2013, the trial court entered an order (“Order
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2”) regarding further pretrial motions. After reviewing
numerous documents including motions, answers to
interrogatories, a response to a request for production of
documents, deposition transcripts, exhibits, and authority, the
trial court found
as a Fact that in the course of the
depositions of Joy Boyd and Cathy Pruitt
Hospital’s counsel instructed both not to
answer questions regarding the process of
the investigation undertaken as a result of
events described in the Plaintiff’s
complaint. The Court, in its discretion
orders that the questions Joy Boyd was
instructed not to answer all be answered as
if posed by written interrogatories and
counsel for the Hospital shall serve answers
on counsel for Plaintiff by 4 o’clock p.m.
March 15, 2013 by fax, (email if agreed to
by the parties) or hand delivery as follows
. . .
The trial court then recited portions of Joy Boyd’s deposition
and ordered
the questions Cathy Pruitt was instructed
not to answer as set out below be answered
as if posed by written interrogatories and
counsel for the Hospital shall serve answers
on counsel for Plaintiff by 4 o’clock p.m.
March 15, 2013 by fax (email if agreed to by
the parties) or hand delivery as follows . .
. .
The trial court then recited portions of Cathy Pruitt’s
deposition. The trial court went on to order
that the Hospital shall provide a “Privilege
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Log” with the specificity as requested in
Paragraph 23 of the Plaintiff’s First Set of
Interrogatories to Hospital and shall serve
the “Privilege Log” on counsel for Plaintiff
by 4 o’clock p.m. March 15, 2013 by fax,
(email if agreed to by the parties) or hand
delivery.
The Court has reviewed Defendant
Hospital’s Exhibit 1 In Camera and in its
discretion concludes that those documents
were prepared pursuant to NCGS § 131E-95(b)
and are protected from production by the
peer review statues.
The Court having determined that
eighteen of the twenty-one questions Joy
Boyd and Cathy Pruitt were instructed not to
answer are ordered answered, and that the
privilege log sought by Plaintiff of the
Hospital is ordered produced that Plaintiff
is entitled to recover attorneys’ fees and
costs for bringing forward his Rule 37
Motion. The Court reserves ruling on the
amount for further hearings into the time
this matter required of Plaintiff’s counsel
including bringing forward both motions to
compel, preparing for hearing, attending
hearing and preparing this Order.
Defendant Hospital appeals Order 1, Order 2, and “the March 11,
2013 Oral Order [made between Order 1 and Order 2] requiring the
production of peer-review privileged documents for in camera
review by the trial judge and allowing the Plaintiff’s Motion to
Shorten Time to Notice Hearing on the Plaintiff’s Motion to
Compel” (“Ruling”).
II. Ruling
As to the Ruling on the plaintiff’s Motion to Shorten Time
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to Notice Hearing on “the Plaintiff’s Motion to Compel[,]” no
written order was ever entered. This Court has previously
determined that parties
cannot appeal from and this Court cannot
consider an order which has not been
entered. See Munchak Corp. v. McDaniels, 15
N.C. App. 145, 147–48, 189 S.E.2d 655, 657
(1972) (“The general rule is that, the mere
ruling, decision, or opinion of the court,
no judgment or final order being entered in
accordance therewith, does not have the
effect of a judgment, and is not reviewable
by appeal or writ of error. As to oral
opinions it is said that, a mere oral order
or decision which has never been expressed
in a written order or judgment cannot, under
most authorities, support an appeal or writ
of error. There is case authority in North
Carolina for this rule. In Taylor v.
Bostic, 93 N.C. 415 (1885) the trial court
entered a written statement of his opinion,
but no order or judgment was entered. The
North Carolina Supreme Court held that the
appeal was premature, there being no
judgment and therefore no question of law
presented from which appeal could be taken.”
(citations, quotation marks, and brackets
omitted)).
Dafford v. JP Steakhouse LLC, 210 N.C. App. 678, 683, 709 S.E.2d
402, 406 (2011). Accordingly, we will not consider any
arguments on appeal regarding the trial court’s oral Ruling.
See id.III. Interlocutory Order
Defendant Hospital acknowledges that its appeal is
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interlocutory but contends that a substantial right regarding
“the production of privileged materials and testimony” would be
affected should this Court not hear its appeal. Plaintiff
contends that defendant Hospital’s appeal asserts that it is
regarding privileged material but in actuality the material is
not privileged. Plaintiff further argues that defendant
Hospital attempts to appeal a decision the trial court made upon
its own request and other issues which in no way affect a
substantial right.
Generally, 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. As this Court has explained: Our
appellate courts have recognized very
limited exceptions to this general rule,
holding that an order compelling discovery
might affect a substantial right, and thus
allow immediate appeal, if it either imposes
sanctions on the party contesting the
discovery, or requires the production of
materials protected by a recognized
privilege.
Britt v. Cusick ___ N.C. App. ___, ___, ___ S.E.2d ___, ___
(Jan. 7, 2014) (No. COA13-387) (citations and quotation marks
omitted). Accordingly, we consider defendant Hospital’s appeal
as to issues regarding privilege and these issues alone; see
id., to the extent that plaintiff is correct, and defendant
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Hospital has invited its own “error” or raised issues which
would not affect a substantial right, we will consider whether
said issues are appropriate for our substantive review on
appeal.
IV. Depositions Regarding Peer Review Privileged Matters
Defendant Hospital first contends that “[t]he Trial Court
erred when it ruled that Plaintiff’s Counsel could secure
deposition testimony on Peer Review Privileged matters.”
Defendant Hospital argues that the trial court erred in Order 2
when it
ordered that the depositions of Randi
Shults, Joy Boyd, and Cathy Pruitt proceed
without placing appropriate limitations on
their scope to ensure that questions
regarding matters that were the subject of
evaluation and review by The Hospital’s Peer
Review Committee were not posed, thereby
jeopardizing The Hospital’s Peer Review
Privilege[,]
and when it “ordered that the handful of questions that
undersigned counsel instructed witnesses Joy Boyd and Cathy
Pruitt not to answer on the basis of the Peer Review Privilege
be answered as if posed by written interrogatories.”
As to the trial court’s alleged failure to limit the scope
of various depositions, defendant Hospital makes no real
argument other than stating that the trial court erred nor does
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defendant Hospital cite any law supporting this assertion. In
addition, the trial court did actually limit the scope of the
depositions and did not permit all of the questions requested by
plaintiff. Indeed, in this argument the only relief defendant
Hospital requests is that this Court “vacate Judge Gessner’s 14
March 2013 Order requiring The Hospital to provide additional
testimony from Ms. Boyd and Nurse Pruitt.” Accordingly, we
address only the issue regarding the trial court’s order
requiring Joy Boyd and Cathy Pruitt to answer certain questions
which had been asked at the depositions in the form of
interrogatories. See Holleman v. Aiken, 193 N.C. App. 484, 508,
668 S.E.2d 579, 594 (2008) (“[P]laintiff has cited no legal
authority in support of her argument, and pursuant to North
Carolina Rule of Appellate Procedure 28(b)(6), it is deemed
abandoned. See N.C.R. App. P. 28(b)(6).”).
In order to determine if the trial court erred in requiring
individuals to provide allegedly privileged information we must
first determine if the information is indeed privileged.
Defendant Hospital contends that the requested information is
privileged pursuant to North Carolina General Statute § 131E-
95(b). Questions as to what is privileged pursuant to North
Carolina General Statute § 131E-95(b) are reviewed de novo.
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Bryson v. Haywood Reg’l Med. Ctr., 204 N.C. App. 532, 535, 694
S.E.2d 416, 419 (“Thus, we review de novo whether the requested
documents are privileged under N.C. Gen. Stat. § 131E–95(b).”),
disc. review denied, 364 N.C. 602, 703 S.E.2d 158 (2010).
As to North Carolina General Statute § 131E–95, this Court
has stated,
By its plain language, N.C. Gen. Stat. §
131E–95 creates three categories of
information protected from discovery and
admissibility at trial in a civil action:
(1) proceedings of a medical review
committee, (2) records and materials
produced by a medical review committee, and
(3) materials considered by a medical review
committee. Additionally, N.C.G.S. § 131E–95
states: However, information, documents, or
other records otherwise available are not
immune from discovery or use in a civil
action merely because they were presented
during proceedings of the committee.
Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678
S.E.2d 787, 791-92 (2009) (citation and quotation marks
omitted), disc. review denied, 363 N.C. 813, 693 S.E.2d 353(2010). Our Supreme Court has further clarified though that the
provisions [in North Carolina General
Statute § 131E–95] mean that information, in
whatever form available, from original
sources other than the medical review
committee is not immune from discovery or
use at trial merely because it was presented
during medical review committee proceedings;
neither should one who is a member of a
medical review committee be prevented from
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testifying regarding information he learned
from sources other than the committee
itself, even though that information might
have been shared by the committee.
The statute is designed to encourage
candor and objectivity in the internal
workings of medical review committees.
Permitting access to information not
generated by the committee itself but merely
presented to it does not impinge on this
statutory purpose. These kinds of materials
may be discovered and used in evidence even
though they were considered by the medical
review committee. This part of the statute
creates an exception to materials which
would otherwise be immune under the third
category of items as set out above.
Shelton v. Morehead Memorial Hospital, 318 N.C. 76, 83-84, 347
S.E.2d 824, 829 (1986) (citation omitted).
Plaintiff contends that neither Joy Boyd nor Cathy Pruitt
“are members of a peer review committee or ever met with a peer
review committee related to this matter.” While we do not have
the entire deposition of either Joy Boyd or Cathy Pruitt,
defendant Hospital’s brief identifies Joy Boyd as the Hospital’s
Director of Surgical Services and Cathy Pruitt as a nurse who
assisted another nurse in using the Pyxis machine that dispensed
Methylene Blue. Defendant Hospital does not contend that Joy
Boyd or Cathy Pruitt are members of the peer review committee or
that they ever met with a peer review committee though it does
contend that Joy Boyd prepared documents for review by the peer
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review committee. Defendant Hospital directs us to portions of
the record which it contends show that Joy Boyd and Cathy Pruitt
testified “that everything they did in terms of discussing and
investigating the incident was done within the Peer Review
Process[;]” however, the cited portion of the record includes
statements made by defendant Hospital’s attorney, not testimony
from either Joy Boyd or Cathy Pruitt. Furthermore, even
defendant Hospital’s attorney stated in the cited portions,
I asked each one of them, “was it your
understanding when these conversations are
going on that it was part of the peer-review
process?” Ms. Boyd said her role was to
work with the risk manager to gather data at
the direction of the peer-review committee.
That was what she says. ‘I prepare things’
– page 25, line 2. ‘I prepare things that
go to the peer-review process.’”
(Emphasis added.) But “prepar[ing] things” for a peer review
committee does not necessarily mean that the information
gathered is privileged:
[t]he statute is designed to encourage
candor and objectivity in the internal
workings of medical review committees.
Permitting access to information not
generated by the committee itself but merely
presented to it does not impinge on this
statutory purpose. These kinds of materials
may be discovered and used in evidence even
though they were considered by the medical
review committee.
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Lastly, and most importantly, we have reviewed the
questions which the trial court ordered Joy Boyd and Cathy
Pruitt to answer in the form of responses to written
interrogatories, and we disagree with defendant Hospital’s
contentions that such questions are privileged pursuant to North
Carolina General Statute § 131E–95. The questions are as
follows:
 “Did you prepare a report as a result
of your investigation?”
 “Tell me what you did. When you say
you and she worked together what are
you trying to describe to me?”
 “Well, tell me how it works. How did
you work together, what did you do?
You’re – that’s what I want to
understand. If – If I were sitting
there watching the two of you, tell me
what I see you doing.”
 “Tell me what I see the two of you
doing.”
 “Now when you say we prepare a
document, who – who dictates it?”
 “Did you do that in this instance?”
 “What part of it did you prepare?”
 “In this instance did you make notes?”
 “Have you preserved those notes, the
one made in this instance?”
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 “Where do you keep those notes if you
have preserved them in this instance?”
 “In this instance was the report that
you prepared for this instance kept in
risk management?”
 “[D]id you appear before a peer review
committee to discuss this incident?”
 “Did you appear before the peer review
committee in this instance?”
 “Did you investigate why Vision Blue
was not in the Pyxis?”
 “So what mentoring did risk management
do for you in this – in the interview
process for this incident?”
 “Other than gathering factual
information from the nurses did the
report you generated do anything other
than – anything else?”
 “Do you maintain a copy of the document
you prepared in your offices or in the
offices under your supervision and
control?”
 “Did Joy Boyd interview you about this
matter?”
 “Did you talk with Joy Boyd after this
event occurred?”
 “At any time have you given a written
statement to anyone regarding your
interaction with Ms. Whitt relating to
the removal of methylene blue from the
Pyxis machine on May 19, 2008?”
 “Have you had an opportunity to review
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any statement that you might have –
well, let [sic] see, have you had an
opportunity to review any statements
you might have given?”
The questions are not regarding the (1) proceedings of a
medical review committee [or] (2) records and materials produced
by a medical review committee[.]” Woods, 198 N.C. App. at 126,
678 S.E.2d at 792. While the questions may implicate “materials
considered by a medical review committee[;]” id., there is “an
exception to materials which would otherwise be immune under the
third category of items” for “information not generated by the
committee itself but merely presented to it[.]” Shelton, 318
N.C. at 83-84, 347 S.E.2d at 829. To the extent that any
questions Joy Boyd and Cathy Pruitt were ordered to answer were
regarding information that is protected by North Carolina
General Statute § 131E-95, the questions most certainly fall
into the exception of the third category. See id. In addition,
by requiring responses to written interrogatories instead of
oral answers to deposition questions, the trial court gave
defendant’s counsel the opportunity to ensure that a witness
does not inadvertently disclose information which may go beyond
the scope of the question asked. Accordingly, the trial court
did not err in requiring the non-privileged questions to be
answered, and this argument is overruled.
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V. In Camera Review
Defendant Hospital next contends that “the trial court
erred when it required the defendant [Hospital] . . . to produce
for in camera inspection [of] peer review privileged documents.”
(Original in all caps.) Defendant Hospital argues that the
trial court should have relied upon other evidence to determine
that the documents were indeed privileged, as defendant Hospital
claimed they were. Defendant Hospital cites no authority for
its assertion that if a party claims that a document is
privileged, then the trial court must accept this claim without
reviewing the document in camera to make an independent legal
determination of privilege. Indeed, there is abundant authority
otherwise. See, e.g., Bryson, 204 N.C. App. at 535, 694 S.E.2d
at 419 (noting that whether a document is privileged pursuant to
North Carolina General Statute § 131E–95 is a question of law).
Both the United States Supreme Court and our Supreme Court have
approved in camera review of information which is subject to a
claim of privilege:
More than a century ago, this Court
held that the responsibility of determining
whether the attorney-client privilege
applies belongs to the trial court, not to
the attorney asserting the privilege. Thus,
a trial court is not required to rely solely
on an attorney’s assertion that a particular
communication falls within the scope of the
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attorney-client privilege. In cases where
the party seeking the information has, in
good faith, come forward with a nonfrivolous
assertion that the privilege does not apply,
the trial court may conduct an in camera
inquiry of the substance of the
communication. See State v. Buckner, 351
N.C. 401, 411–12, 527 S.E.2d 307, 314 (2000)
(trial court must conduct in camera review
when there is a dispute as to the scope of a
defendant’s waiver of the attorney-client
privilege, such as would be the case when a
defendant has asserted an ineffective
assistance of counsel claim); State v.
Taylor, 327 N.C. at 155, 393 S.E.2d at 807
(same); see also Willis v. Duke Power Co.,
291 N.C. 19, 36, 229 S.E.2d 191, 201 (1976)
(trial court may require in camera
inspection of documents to determine if they
are work-product).
We note that the United States Supreme
Court has also placed its imprimatur on the
need for in camera inspections in
circumstances where application of the
privilege is contested. Zolin, 491 U.S.
554, 105 L.Ed. 2d 469 (in camera review to
determine whether the crime-fraud exception
to attorney-client privilege applies);
United States v. Nixon, 418 U.S. 683, 41
L.Ed. 2d 1039 (1974) (in camera review to
determine whether communications are subject
to the executive privilege). The necessity
for an in camera review of attorney-client
communications in some cases is also
endorsed by the Restatement of the Law
Governing Lawyers: In cases of doubt
whether the privilege has been established,
the presiding officer may examine the
contested communication in camera.
In re Investigation of Death of Eric Miller, 357 N.C. 316, 336-
37, 584 S.E.2d 772, 787 (2003) (citations and quotation marks
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omitted). Although Miller addressed attorney-client privilege,
the general principles which apply here are the same: the
determination of privilege is a question of law which the trial
judge must decide and in camera review of the evidence in
question is proper. See generally id. Thus, the case law
supports that on the question of privilege, the trial court
certainly has an interest in ensuring that the asserted
information is indeed privileged and need not rely on the word
of the interested party or its counsel. See generally id.Defendant Hospital goes on to contend that the trial
court’s “in camera review has colored its reception to The
Hospital’s defenses in this case and, if left unchecked, will
likely produce a damaging effect on Peer Review
Investigations[.]”1 Defendant Hospital cites to portions of the
trial court’s statements in court that “someone is not acting
reasonably,” claiming that the trial court’s review of the
evidence caused the court to be “unmistakabl[y]” “prejudice[d]”
against it. But the trial court did not indicate which party
may not be “acting reasonably,” and even assuming arguendo the
1
We also note that the documents which defendant Hospital claims
that the trial court should not have reviewed in camera were not
included in the record on appeal so that we could also review
them in camera. Presumably, defendant Hospital feared that we,
like the trial court, would be unable to maintain our
impartiality if we were to review these records.
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trial court was implying that defendant Hospital was being
unreasonable there is absolutely no evidence that the trial
court made such statements because of the documents it reviewed
in camera. Defendant Hospital “doth protest too much,
methinks.” William Shakespeare, Hamlet act 3, sc. 2.
In addition, because of their duty to rule upon claims of
privilege and admissibility of evidence, it is extremely common
for trial judges to acquire knowledge of evidence which is
privileged, irrelevant, unfairly prejudicial, illegally
gathered, or otherwise incompetent, but they also are quite
accustomed to ruling upon cases without consideration of the
content of any privileged or incompetent evidence previously
viewed. Were we to accept defendant Hospital’s argument, a
trial judge would need to be recused after any in camera
consideration of seriously damaging evidence, even if the judge
determines that the evidence is protected by privilege, upon the
theory that the trial judge may then be prejudiced against the
party who sought to protect the evidence. There is simply no
legal basis for such a claim, nor any factual basis to think
that such a thing happened in this case. This argument is
overruled.
VI. Notice
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Defendant Hospital next contends that “the trial court
erred in holding ex parte hearings without affording the
defendant [Hospital] . . . adequate notice and a meaningful
opportunity to be heard.” (Original in all caps.) The hearing
of which defendant complains here was the 6 March 2013 hearing
as to defendant Hospital’s Motion for Protective Order. Yet
what defendant seeks to characterize as an ex parte hearing
without adequate notice to all parties was actually a properly
noticed hearing that defendant Hospital made a deliberate choice
not to attend. Even according to defendant Hospital’s brief,
after being notified of the time of the hearing, “[t]he Hospital
undertook great efforts to inform the Court that it could not
attend the 6 March 2013 hearing on its Motion[.]” Indeed, the
record contains a letter from defendant Hospital’s counsel
noting that though aware of the hearing “none of our team is
available to be heard this week. . . . For our part, we simply
have other long-standing obligations in other cases in order to
be ready to try this case.” Defendant Hospital’s “long-standing
obligations in other cases” was, according to defendant
Hospital, a meeting with expert witnesses at counsel’s office,
and use of the word “team” seems to indicate that defendant
Hospital’s counsel’s firm does have more than one attorney.
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Defendant’s counsel made the decision that not even one member
of the “team” could attend the hearing on 6 March 2013, and that
is their prerogative, but it does not entitle them to relief.
Defendant Hospital had both notice of the hearing and an
opportunity to be heard; defendant Hospital just chose not to
exercise the opportunity. The fact that defendant Hospital
chose not to attend without filing any motion requesting a
continuance or other relief, and according to its own letter
instead chose to interview expert witnesses, in no way indicates
a due process violation on the part of the trial court. See
generally State v. Poole, ___ N.C. App. ___, ___, 745 S.E.2d 26,
34 (“‘The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner.’ Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893,
902, 47 L.Ed. 2d 18, 32 (1976) (citation and quotation marks
omitted).”), disc. review denied and appeal dismissed, ___ N.C.
App. ___, 749 S.E.2d 885 (2013). Accordingly, this argument is
overruled.
VII. Sanctions
Lastly, defendant Hospital contends that “the trial court
erred when it awarded attorney’s fees on the plaintiff’s motions
to compel.” (Original in all caps.) In Order 2, the trial
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court stated, “Plaintiff is entitled to recover attorneys’ fees
and costs for bringing forward his Rule 37 Motion. The Court
reserves ruling on the amount for further hearings into the time
this matter required[.]”
[A]n appeal from an award of attorneys’ fees
may not be brought until the trial court has
finally determined the amount to be awarded.
For this Court to have jurisdiction over an
appeal brought prior to that point, the
appellant would have to show that waiting
for the final determination on the
attorneys’ fees issue would affect a
substantial right.
Triad Women's Ctr., P.A. v. Rogers, 207 N.C. App. 353, 358, 699
S.E.2d 657, 660-61 (2010). As defendant Hospital failed to
argue a substantial right as to attorneys’ fees, we dismiss this
portion of defendant Hospital’s appeal as interlocutory. See
id.We further note that pursuant to North Carolina Rule of
Appellate Procedure 34 plaintiff has also filed a motion
requesting this Court to sanction defendant Hospital because
defendant Hospital’s appeal was frivolous. See N.C.R. App. P.
34. We agree that most of defendant Hospital’s arguments lack
legal or factual basis and believe it is appropriate to sanction
defendant Hospital the cost of plaintiff’s attorney’s fees
regarding this appeal.
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[W]e therefore tax [defendant Hospital]
personally with the costs of this appeal and
the attorney fees incurred in this appeal by
[plaintiff]. Pursuant to Rule 34(c), we
remand this case to the trial court for a
determination of the reasonable amount of
attorney fees incurred by [plaintiff] in
responding to this appeal.
Ritter v. Ritter, 176 N.C. App. 181, 185, 625 S.E.2d 886, 888-
89, disc. review denied and appeal dismissed, 360 N.C. 483, 632
S.E.2d 490 (2006).
VIII. Conclusion
For the foregoing reasons, we affirm and remand in part.
AFFIRMED and REMANDED in part.
Judges HUNTER, JR., Robert N. and DILLON concur.