Fore v. The Western N.C. Conf. of the United Methodist Church ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-404
No. COA21-546
Filed 21 June 2022
Mecklenburg County, No. 21 CVS 767
LISA BIGGS FORE, Plaintiff,
v.
THE WESTERN NORTH CAROLINA CONFERENCE OF THE UNITED
METHODIST CHURCH (a/k/a WESTERN NORTH CAROLINA CONFERENCE);
and THE CHILDREN’S HOME, INCORPORATED (a/k/a THE CHILDREN’S
HOME, a/k/a THE CROSSNORE SCHOOL & CHILDREN’S HOME, a/k/a
CROSSNORE CHILDREN’S HOME), Defendants.
Appeal by defendants from order entered 11 June 2021 by Judge Lisa C. Bell
in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 April 2022.
Janet Janet & Suggs, LLC, by Richard Serbin and Matthew White, for plaintiff-
appellee.
Ogletree Deakins, by Kelly S. Hughes and Ashley P. Cuttino, admitted pro hac
vice, for defendant-appellant The Western North Carolina Conference of the
United Methodist Church (a/k/a Western North Carolina Conference).
Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, G. Gray Wilson
and D. Martin Warf, for defendant-appellant The Children’s Home,
Incorporated (a/k/a The Children’s Home, a/k/a The Crossnore School &
Children’s Home, a/k/a Crossnore Children’s Home).
TYSON, Judge.
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¶1 The Western North Carolina Conference of the United Methodist Church
(“WNCCUMC”) and The Crossnore School & Children’s Home (“Children’s Home”)
(together “Defendants”) purport to appeal a trial court’s ex parte order directing
disclosure of non-joined, third-party records of alleged child sexual abuse. We dismiss
this interlocutory appeal without prejudice.
I. Background
¶2 Plaintiff asserts she was sexually abused as a minor, while she resided at The
Children’s Home in Winston-Salem during the 1970s. Plaintiff claims she reported
the alleged abuse by her former Children’s Home employee-parents to officials in
Rockingham County. Plaintiff filed a civil action in Mecklenburg County Superior
Court against Defendants on 6 January 2021. Plaintiff claims Defendants
negligently supervised the staff and breached fiduciary duties they owed to her.
¶3 Defendants filed motions to dismiss Plaintiff’s complaint under Rule 12(b)(6),
contending 2019 N.C. Sess. Laws 5 § 4.2(b) and N.C. Gen. Stat. § 1-56(b) (2021) are
unconstitutional as-applied to them under Article I, Section 19 of the North Carolina
Constitution. WNCCUMC moved to dismiss Plaintiff’s claims pursuant to Rule
12(b)(1). These motions remain pending before the trial court.
¶4 On 3 June 2021, Plaintiff filed a motion for production of criminal investigation
records pursuant to N.C. Gen. Stat. § 132-1.4 (2021). Plaintiff’s motion sought
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confidential records of alleged child sexual abuse by any Children’s Home employee
against any minor residing therein from the surrounding counties’ sheriff’s offices,
Departments of Social Services, and police departments.
¶5 Plaintiff prepared a proposed order and submitted it along with her motion,
which was mailed to the Mecklenburg County Clerk’s Office for filing. Plaintiff did
not file nor serve a notice of hearing on her motion for production of records on
Defendants. On 11 June 2021, the trial court entered Plaintiff’s proposed order, ex
parte. The order decreed the various agencies and departments:
shall produce any and all information in whatever form
it exists in connection with the alleged child sexual abuse
committed by [employee parents] or other employees of the
Children’s Home alleged to have sexually abused and/or
engaged in sexual activities with a minor while a resident
of the home. (emphasis supplied).
¶6 Defendants filed notice of appeal, separately sought and obtained a temporary
stay, and petitioned for and obtained a writ of supersedeas.
II. Jurisdiction
¶7 Defendants’ appeal is clearly interlocutory. Appellate review is proper
pursuant to N.C. Gen. Stat. § 7A-27(b)(3) if the party proves one of the requirements
therein.
¶8 “An order is interlocutory if it is made during the pendency of an action and
does not dispose of the case but requires further action by the trial court in order to
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finally determine the rights of all the parties involved in the controversy.” Flitt v.
Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (citation omitted).
Defendant is entitled to review “where ‘the trial court’s decision deprives the
appellant of a substantial right which would be lost absent immediate review.’” Id.(citation omitted).
III. Argument
¶9 Defendants argue their substantial rights are violated because they were not
given prior notice and an opportunity to oppose Plaintiff’s motion for the production
of alleged child sexual abuse records of non-joined third parties from surrounding
county public entities. For nearly seventy years, the courts of this state have held:
The notice required by these constitutional provisions in
such proceedings is the notice inherent in the original
process whereby the court acquires original jurisdiction,
and not notice of the time when the jurisdiction vested in
the court by the service of the original process will be
exercised . . . After the court has once obtained jurisdiction
in a cause through the service of original process, a party
has no constitutional right to demand notice of further
proceedings in the cause.
Collins v. Highway Commission, 237 N.C. 277, 281, 74 S.E.2d 709, 713 (1953)
(emphasis supplied).
¶ 10 Defendants cite Mission Hosps., Inc. v. N.C. Dep’t of Health & Hum. Servs.,
189 N.C. App. 263, 270, 658 S.E.2d 277, 281 (2008), and Pask v. Corbitt, 28 N.C. App.
100, 104, 220 S.E.2d 378, 382 (1975), to support their contention they were entitled
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to prior notice of the hearing. Defendants’ reliance on these cases is misplaced.
¶ 11 Mission Hospital was a DHHS agency appeal, in which the party had directly
violated North Carolina statutes forbidding a “member or employee of the agency
making a final decision in the case [from] communicat[ing] , directly or indirectly, in
connection with any issue of fact, or question of law, with any person or party or his
representative, except on notice and opportunity for all parties to participate.” Mission
Hosps., Inc., 189 N.C. App. at 270, 658 S.E.2d at 281 (emphasis supplied) (citation
omitted).
¶ 12 In Pask, the plaintiff filed a motion to add parties to the action pursuant to
Rule 21 of our Rules of Civil Procedure, and this Court noted, “[l]ong prior to the
adoption of G.S. 1A-1, Rule 21, North Carolina has held that existing parties to a
lawsuit are entitled to notice of a motion to bring in additional parties.” Pask, 28 N.C.
App. at 103, 220 S.E.2d at 381. The facts and issues in Mission Hospital and Pask
are wholly inapposite from those before us and do not show a substantial right to
immediate review.
¶ 13 Here, both Defendants have been haled into court by five different plaintiffs
under recent legislation titled SAFE Child Act, 2019 N.C. Sess. Laws 5 § 4.2(b). This
statute revived previously time-barred claims for child sexual abuse for a period of
two years. Id. The plaintiffs in the first two cases filed and served written discovery
requests on Defendants. Defendants failed to produce any responses to discovery to
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date, instead delaying with objections to each request and a reference to pending
motions for a protective order which they have not noticed for hearing.
¶ 14 Before Plaintiff could serve any written discovery requests, Defendants filed a
motion to stay discovery pending the outcome of their motions to dismiss. Plaintiff
was left with the choice to proceed without discovery or to file the contested motion
seeking alternative means of locating evidence to support her claims.
¶ 15 Unlike the requirements in Mission Hospital and Pask, no statute or
constitutional provision under these facts requires Plaintiff to provide prior notice to
Defendants for a hearing seeking criminal records of non-joined third parties from
public entities, and which may affect Defendants’ prior employees, who are not joined
as parties herein. Further, Defendants were aware through prior discovery requests
of Plaintiff’s demand and intent to obtain the evidence. No formal notice was needed,
because the order to produce was related and made to, and was obtained from, non-
joined third parties.
¶ 16 Defendants’ arguments are without merit asserting prior notice of a records
request to public entities concerning non-joined third parties as a substantial right to
an immediate appeal. As further discussed below, Defendants have shown no
“substantial right which would be lost absent immediate review.” Flitt, 149 N.C. App.
at 477, 561 S.E.2d at 513 (citations and internal quotation marks omitted).
IV. Jus Tertii
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¶ 17 Purported claims or rights of a third party cannot be asserted as a defense by
an unrelated litigant. “In general, jus tertii cannot be set up as a defense by the
defendant, unless he can in some way connect himself with the third party.” Comm.
to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 592, 2021-NCSC-6, ¶
60, 853 S.E.2d 698, 723 (2021) (quoting Holmes v. Godwin, 69 N.C. 467, 470 (1873)).
¶ 18 Jus Tertii is a principle of law prohibiting a party from raising the claims or
rights of third parties. Id. (citation omitted). Jus Tertii is defined as: “The right of a
third party. The doctrine that [. . .] courts do not decide what they do not need to
decide.” Jus Tertii, Black’s Law Dictionary (11th ed. 2019). “A jus tertii situation
arises when the defendant has no defense of his own but wishes to defeat the
plaintiff's action by alleging a defect in the plaintiff's title or the fact that the plaintiff
has no title at all.” Jus Tertii Under Common Law and the N.I.L., 26 St. John’s L.
Rev. 135, 135 (1951).
¶ 19 The Idaho Supreme Court provides persuasive guidance in an illustrative case
of mistaken assertion by a defendant of rights owned by a non-joined third party.
Gissel v. State, 727 P.2d 1153, 1154 (Idaho 1986). Gissel had unlawfully harvested
wild rice growing on lands jointly owned by the State of Idaho and the United
States National Forest Service. Id. Gissel was convicted in state court of trespass.
Id. Idaho officials seized and sold the harvested rice. Id. Because the State of Idaho
owned only a one-half interest in the land, Gissel challenged the state’s authority to
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seize, sell, and keep all profits from the sale of the rice. Id.¶ 20 The Idaho Supreme Court held Gissel was entitled to one-half of the proceeds
from the sale, because the State of Idaho did not effectively join or make the jus
tertii argument on behalf or under the authority of the United States National Forest
Service. Id. at 1156. “The Gissels, though trespassers and without legal title, which
title rests with the Forest Service, still by mere possession have greater rights
superior to that of the state” to the other one-half of the proceeds from the sale. Id.¶ 21 Defendants are barred from asserting any of DSS’ or non-joined former
employees’ third parties’ purported rights to notice of records as a jus tertii defense,
when neither are parties to this action, Defendants cannot collaterally attack the
orders and judgment entered in other cases to which they were not a party. Id.¶ 22 Plaintiff’s motion to the court does not need a “mother may I” from Defendants
to obtain relevant evidence to support their claims, particularly where Defendants
are non-responsive to and delaying their access to that evidence. N.C. Gen. Stat. §
132-1.4(a) (2021); Collins, 237 N.C. at 281, 74 S.E.2d at 713. Their purported
assertions of entitlement to prior notice of a motion seeking non-party and third-party
records to challenge the order are without merit.
V. Standing
¶ 23 “Every claim shall be prosecuted in the name of the real party in interest[.]”
N.C. Gen Stat. § 1A-1, Rule 17(a) (2021). “The real party in interest is the party who
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by substantive law has the legal right to enforce the claim in question.” Reliance Ins.
Co. v. Walker, 33 N.C. App. 15, 19, 234 S.E.2d 206, 209 (1977) (citation omitted).
¶ 24 Here, Defendants are not the real party in interest relating to the request for
records. Defendants are not the party investigated in the records requested. In fact,
the records were requested from non-joined third-parties. Only those parties whose
records were requested are “the real party in interest” with standing to challenge the
motion to produce those records. Defendants do not have standing to challenge the
motion in this case because they are not the real party in interest. Id.VI. Records of Criminal Investigations
¶ 25 Presuming, arguendo, Defendants should have been given prior notice of the
hearing under any theory, Defendants are not the subject of the criminal
investigation records and were not entitled to prior notice on those grounds.
Defendants and our dissenting colleague argue the production of the criminal records
and investigation of purported former employees ordered by the court will violate
Defendants’ procedural and substantial rights.
Records of criminal investigations conducted by public law
enforcement agencies, records of criminal intelligence
information compiled by public law enforcement agencies,
and records of investigations conducted by the North
Carolina Innocence Inquiry Commission, are not public
records as defined by G.S. 132-1. Records of criminal
investigations conducted by public law enforcement
agencies or records of criminal intelligence information
may be released by order of a court of competent
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jurisdiction.
N.C. Gen. Stat. § 132-1.4(a) (2021) (emphasis supplied). Unlike the cases Defendants
rely upon, the statute includes no restrictions on the trial court’s power and discretion
to release criminal investigation records, nor assert any right or requirement of prior
notice to non-parties.
¶ 26 Further, Defendants have not shown they are “aggrieved” parties to merit
immediate review. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000)
(“[O]nly a ‘party aggrieved’ may appeal a trial court order or judgment, and such a
party is one whose rights have been directly or injuriously affected by the action of
the court.”) (citation omitted).
¶ 27 The record on appeal also omits the facts, pleadings, and orders from this Court
on Defendants’ motion for temporary stay, which was allowed on 12 July 2021, and
their petition for a writ of supersedeas, which was allowed on 21 August 2021, staying
the trial court’s order “pending the outcome of petitioner’s appeal to this Court.” Our
dissenting colleague agrees “this writ of supersedeas references the appeal before us.”
That order remains unaffected by the dismissal of this interlocutory appeal.
VII. Conclusion
¶ 28 Defendants have failed to carry their burden to show their substantial rights
were violated by the superior court’s order to warrant an immediate interlocutory
review. Defendants moved for and received a temporary stay and petitioned for a
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writ of supersedeas, which this Court allowed. With no Rule 54(b) certification or
showing of a substantial right which will be lost without immediate review,
Defendants’ interlocutory appeal is denied. This case is dismissed without prejudice.
DISMISSED WITHOUT PREJUDICE.
Judge ZACHARY concurs.
Chief Judge Stroud dissents with separate opinion.
No. COA21-546 – Fore v. Western N.C. Conference of United Methodist Church
STROUD, Chief Judge, dissenting.
¶ 29 The Majority’s opinion dismisses Defendants’ appeal on the ground it is
interlocutory and Defendants cannot show a Rule 54(b) certification or loss of a
substantial right absent immediate review. I agree Defendant’s appeal is
interlocutory and the trial court has not issued a Rule 54(b) certification. But I
believe Defendants have demonstrated a substantial right because the trial court
entered an ex parte order with no notice to the Defendants; the trial court should not
take any action without proper notice of the hearing to all parties. Defendants have
also demonstrated a substantial right based on the statutory protections they claim
the ex parte order violates. Turning to the merits, I would hold the trial court erred
both because it entered the order ex parte, without statutory authority to do so
without notice to Defendants, and because the order released Department of Social
Services (“DSS”) records and law enforcement records of child abuse investigations
protected by North Carolina General Statute § 7B-2901(b) without following its plain,
unambiguous language about giving DSS proper notice and a chance to be heard.
Finally, I disagree with the Majority Opinion when it claims the writ of supersedeas
remains unaffected by our dismissal of this appeal.
¶ 30 “Notice of issues to be resolved by the adversary process is a fundamental
characteristic of fair procedure.” Matter of Duvall, 268 N.C. App. 14, 19, 834 S.E.2d
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177, 181 (2019) (quoting Lankford v. Idaho, 500 U.S. 110, 126, 111 S. Ct. 1723, 1732
(1991)). “In addition to prior notice, a ‘fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.’” Id.(quoting Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 902 (1976)) (internal
quotations and citation from Mathews omitted). These fundamental components of
due process extend to the issue at hand where Defendants had no notice of Plaintiff’s
request to the trial court for entry of an ex parte order requiring disclosure of
documents from DSS and several law enforcement agencies to Plaintiff. See In re
Officials of Kill Devil Hills Police Dept., 223 N.C. App. 113, 118, 733 S.E.2d 582, 587
(2012) (finding a due process violation when the trial court entered an order “without
providing notice or opportunity to be heard”). For example, in In re Officials of Kill
Devil Hills Police Dept., this Court found a trial court violated the appellants’ due
process rights when it ordered them to turn over police personnel files because the
implicated officers had no “notice or opportunity to be heard” since the trial court had
never conducted a hearing. Id., 233 N.C. App. at 114, 118, 733 S.E.2d at 584–85, 587.
Here, likewise the trial court’s actions raised due process concerns by granting
Plaintiff’s motion without hearing or prior notice to Defendant and ordering various
government entities, including police departments and DSS, to turn over a broad
range of documents regarding investigations of abuse of minors without any notice or
an opportunity to be heard.
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¶ 31 These due process concerns allow Defendants to demonstrate the trial court’s
interlocutory ex parte order “affects some substantial right claimed by . . . [them] and
will work an injury to [them] if not corrected before an appeal from the final
judgment.” Department of Transp. v. Rowe, 351 N.C. 172, 174–75, 521 S.E.2d 707,
709 (1999) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381
(1950)). This Court has “previously recognized the ‘constitutional right to due process
is a substantial right.’” Hall v. Wilmington Health, PLLC, 2022-NCCOA-204, ¶ 20
(quoting Savage Towing Inc. v. Town of Cary, 259 N.C. App. 94, 99, 814 S.E.2d 869,
873 (2018)). Since the trial court entered an ex parte order without notice to
Defendants and thereby implicated their due process rights, Defendants have
demonstrated a substantial right sufficient to allow us to hear their appeal from an
interlocutory order.
¶ 32 The Majority Opinion rejects Defendant’s notice argument by relying on
Collins v. N. Carolina State Highway & Pub. Works Comm’n, 237 N.C. 277, 74 S.E.2d
709 (1953), to contend constitutional notice only requires notice of the original
proceeding. But the constitutional due process landscape has developed significantly
since 1953. As part of those developments, this Court has recognized “engaging in ex
parte communications with one party without notice to the other parties” in the
middle of proceedings violates due process. See Mission Hospitals, Inc. v. N.C. Dept.
of Health and Human Services, Div. of Facility Services, 189 N.C. App. 263, 265, 267–
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69, 658 S.E.2d 277, 278, 280–81 (2008) (so holding when, after a hearing but before
issuing the final agency decision, the decision-maker received additional materials
and argument ex parte). The Majority Opinion dismisses Mission Hospitals on the
grounds it relied on a statutory violation, but this Court clearly concluded the ex parte
actions “compromised [appellant’s] due process rights.” Id., 189 N.C. App. at 269, 658
S.E.2d at 281.
¶ 33 The Majority Opinion also contends Defendants cannot immediately appeal
because they are not aggrieved parties given the statutes at issue here do not require
Plaintiff to provide Defendants notice about a hearing on Plaintiff’s receipt of records
from third parties. The Majority Opinion relies on Bailey v. State, 353 N.C. 142, 540
S.E.2d 313 (2000), to argue only an aggrieved party can appeal a trial court order or
judgment. First, it is not clear Bailey applies to the situation here. Bailey involved
a case where a non-party, our State’s Attorney General, attempted to appeal a case
in which he was not a party. 353 N.C. at 156, 540 S.E.2d at 322. By contrast, here
Defendants-Appellants are parties.
¶ 34 Second, Defendants are aggrieved parties. “A party aggrieved is one whose
legal rights have been denied or directly and injuriously affected by the action of the
trial court.” In re Winstead, 189 N.C. App. 145, 151, 657 S.E.2d 411, 415 (2008)
(quotations and citation omitted). Here, Defendants did not receive the notice of the
hearing they were supposed to receive, thereby implicating their due process rights.
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As a result, Defendants are aggrieved parties who can appeal the order at issue. See
Wachovia Bank & Trust Co., N.A. v. Parker Motors, Inc., 13 N.C. App. 632, 634, 186
S.E.2d 675, 677 (1972) (linking whether a party is aggrieved to whether the order
affects a substantial right).
¶ 35 In addition—as part of an argument that Defendants were not entitled to
notice because they are not the subject of the requested criminal investigation records
and thus do not have a substantial right—the Majority Opinion addresses only the
Public Records statute regarding release of records of criminal investigations, but the
records covered by the trial court’s order include records of abuse of juveniles
investigated by two Departments of Social Services in addition to records of law
enforcement agencies. All the records sought, both as to criminal investigations and
investigations by DSS, address sexual abuse of minor children. Confidentiality of
records of child abuse and statutory procedures for release of these records is
addressed in Chapter 7B, Article 29 of the General Statutes, specifically in North
Carolina General Statute § 7B-2901(b)(2) (2021).
¶ 36 The Majority Opinion does not discuss Chapter 7B but relies solely upon North
Carolina General Statute § 132-1.4, which deals with the limitations upon public
records in the context of law enforcement investigations. N.C. Gen. Stat. § 132-1.4(2021). As a general rule, “[t]he Public Records Act does not provide for disclosure of
records of criminal investigations or criminal intelligence information . . . .” Gannett
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Pacific Corp. v. North Carolina State Bureau of Investigation, 164 N.C. App. 154, 160–
61, 595 S.E.2d 162, 166 (2004). “Because records of criminal investigations and
records of criminal intelligence information are not public records, a party seeking
disclosure of such records must seek release ‘by order of a court of competent
jurisdiction.’” Id., 164 N.C. App. at 157, 595 S.E.2d at 164 (quoting N.C. Gen. Stat. §
132-1.4(a) (2003)1). This Court has previously recognized that the fact that a criminal
investigation has concluded does not convert records of criminal investigations into
public records because the justifications for protection of these records remain even
after an investigation has ended:
As noted by our Supreme Court,
“[i]t is clear that if investigatory files were made
public subsequent to the termination of enforcement
proceedings, the ability of any investigatory body to
conduct future investigations would be seriously
impaired. Few persons would respond candidly to
investigators if they feared that their remarks would
become public record after the proceedings. Further,
the investigative techniques of the investigating
body would be disclosed to the general public.” An
equally important reason for prohibiting access to
police and investigative reports arises from
recognition of the rights of privacy of individuals
mentioned or accused of wrongdoing in unverified or
unverifiable hearsay statements of others included
1 The current version of § 132-1.4(a) contains the same language quoted by Gannett; the
only change since the 2003 version of the statute is the addition of protection for records of
investigations from the North Carolina Innocence Inquiry Commission. Compare N.C. Gen.
Stat. § 132-1.4(a) (2003) with N.C. Gen. Stat. § 132-1.4(a) (2021).
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in such reports.
[News and Observer v. State; Co. of Wake v. State; Murphy
v. State, 312 N.C. 276,] 282–83, 322 S.E.2d [133,] 138
[(1984)] (citations omitted) (quoting Aspin v. Department of
Defense, 491 F.2d 24, 30 (D.C.Cir.1973)).
Gannett Pacific Corp., 164 N.C. App. at 160, 595 S.E.2d at 166 (first alteration in
original; case citations added). And the records Plaintiff sought deal with abuse of
minors. Because the records deal with child abuse, §132-1.4 specifically requires
compliance with Article 29 of Chapter 7B: “Records of investigations of alleged child
abuse shall be governed by Article 29 of Chapter 7B of the General Statutes.” N.C.
Gen. Stat. § 132-1.4(l) (2021). Within Article 29 of Chapter 7B, North Carolina
General Statute § 7B-2901(b)(2) specifically provides for notice to DSS in civil actions
when a party seeks these types of records in a civil action and DSS is not already a
party, thereby refuting the Majority Opinion’s conclusion § 132-1.4 does not require
prior notice to non-parties or entities that are not the subject of the criminal
investigations.
¶ 37 The Majority Opinion further claims Plaintiff had no choice but to pursue her
case without discovery or to file the motion to seek to locate evidence to support her
case. Certainly Plaintiff has the option of seeking to locate evidence by requesting
records from the law enforcement agencies and Departments of Social Services, but
Plaintiff still has the obligation to follow statutory procedures in seeking these
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records and to give all parties to her lawsuit notice before asking the trial court to
enter an order. Plaintiff was entitled to seek production of records, but she was not
entitled to do so without following statutory procedures and without notice to
Defendants—because Defendants are parties to this case, not because information in
records is about Defendants.
¶ 38 The Majority Opinion finally notes there is no specific statute requiring
Defendants to have notice of the hearing before the trial court, but ex parte hearings
are the exception to the general rule and are allowed only in specific circumstances,
as recognized by Rule 5 of the North Carolina Rules of Civil Procedure. Under Rule
5, “every written motion other than one which may be heard ex parte, and every
written notice, appearance, demand, offer of judgment and similar paper shall be
served upon each of the parties.” N.C. Gen. Stat. § 1A-1, Rule 5(a) (2021) (emphasis
added). Numerous other rules reinforce the importance of and ensure the provision
of notice. See General Rules of Practice for the Superior and District Court, Rules 6
(2021) (indicating “[m]otions may be heard and determined either at the pre-trial
conference or on motion calendar as directed by the presiding judge”), 7 (requiring
plaintiff and defendant attorneys to work together to schedule a pre-trial conference),
2(b) (indicating civil calendar be published “no later than four weeks prior to the first
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day of court”)2; 26 Jud. Dist. Sup. Civil R. 12.1–12.3 (2021) (local rules applicable to
Mecklenburg County Superior Court requiring filing party to calendar motions for a
hearing and then file a “notice of hearing” which then “will be served on counsel for
the opposing party or parties” within two business days); N.C. R. Prof. Conduct
3.5(a)(3), (d) (2021) (barring attorneys from communicating ex parte “with the judge
or other official regarding a matter pending before the judge or official” except where
“authorized to do so by law or court order” where “[e]x parte communication means a
communication on behalf of a party to a matter pending before a tribunal that occurs
in the absence of an opposing party, without notice to that party, and outside the
record”); North Carolina Code of Judicial Conduct Canon 3(A)(4) (2021) (“A judge
should accord to every person who is legally interested in a proceeding, or the person’s
lawyer, full right to be heard according to law, and, except as authorized by law,
neither knowingly initiate nor knowingly consider ex parte or other communications
concerning a pending proceeding.”). Plaintiff did serve her motion on Defendants,
but she did not serve any notice of hearing or notification that she would be
2 The current version of the Rules of Practice for Superior and District Court now includes
slightly different language around notice. See General Rules of Practice for the Superior
and District Court, Rule 6 (eff. 1 Sept. 2021) (requiring an attorney “scheduling a hearing
on a motion” to “make a good-faith effort to request a date for the hearing on which each
interested party is available” except “if a motion is properly made ex parte” (emphasis
added)).
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requesting the trial court to enter an order without a hearing, and she has not
identified any statutory basis to have had her motion heard ex parte.
¶ 39 Beyond the due process notice issue, Defendants also have a substantial right
on the grounds they are asserting a statutory privilege. In Sharpe v. Worland, our
Supreme Court recognized when “a party asserts a statutory privilege which directly
relates to the matter to be disclosed under an interlocutory discovery order, and the
assertion of such privilege is not otherwise frivolous or insubstantial, the challenged
order affects a substantial right . . . .” 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999).
This Court then extended the “reasoning set forth in Sharpe” to find an appeal
“affect[ed] a substantial right” where the defendants challenged an order compelling
discovery on the grounds it would lead to the release of “juvenile records, social
services records, [and] law enforcement records” in violation of statutes requiring a
court order to release those records, including North Carolina General Statutes §§
7B-2901(b) and 132-1.4, both of which are at issue here.3 Jane Doe 1 v. Swannanoa
Valley Youth Development Center, 163 N.C. App. 136, 139, 592 S.E.2d 715, 717–18
3Specifically, the defendants there challenged the order releasing those records on the
grounds the North Carolina Industrial Commission was not a court that could order
disclosure of the records as required by statute, but this Court found the Industrial
Commission was a court for these purposes. Jane Doe 1, 163 N.C. App. at 139, 592 S.E.2d
at 718. Regardless of the specific nature of the defendants’ challenge on the merits in that
case, Jane Doe 1 should guide our decision here on the question of whether Defendants
have demonstrated a substantial right because it found defendants asserting the same
statutory protections at issue here had shown a substantial right as laid out above.
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(2004). Given Defendants here are asserting the same statutory privilege this Court,
with the Majority Opinion’s author concurring, determined implicated a substantial
right before, Defendants’ appeal here also involves a substantial right.
¶ 40 Jane Doe 1 informs whether Defendants asserted a substantial right here
despite the fact that case involved a discovery request directly to its defendants. Id.,163 N.C. App. at 137–38, 592 S.E.2d at 717. In addition to my previous response to
the Majority Opinion’s aggrieved party argument, in Jane Doe 1, the defendants were
not asserting a statutory privilege they explicitly directly held. Focusing on one of
the common statutes at issue, North Carolina General Statute § 7B-2901(b), the
protections there, based on the statute in effect in 2004, only indicated records “may
be examined only by order of the court.” N.C. Gen. Stat. § 7B-2901(b) (2003). The
statute was silent on whether a party in litigation who did not hold those records
could assert the protection afforded by § 7B-2901(b). Id. Despite the statute not
stating they held the statutory protection, the defendants in Jane Doe 1 had a
substantial right based on asserting such protection, 163 N.C. App. at 139, 592 S.E.2d
at 717–18, and similar reasoning applies here. Although the current statute does not
say Defendants hold the statutory privilege, see N.C. Gen. Stat. § 7B-2901(b)(2) (2021)
(providing for DSS to have “reasonable notice and an opportunity to be heard”), they
can still claim a substantial right by asserting such protection.
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¶ 41 Thus, on both due process notice grounds and statutory privilege grounds,
Defendants have shown they have a substantial right which will be lost without
review of their interlocutory appeal. I therefore dissent from the dismissal of the
appeal.
¶ 42 Turning to the merits of the case, I would hold the trial court erred because §
7B-2901(b)(2) explicitly requires notification to DSS and in camera review of any
records which may be released and that did not occur here. Specifically, § 7B-
2901(b)(2) states records kept by DSS about juveniles under their care or court
placement “may be examined only in the following circumstances”:
...
(2) A district or superior court judge of this State presiding
over a civil matter in which the department [DSS] is not a
party may order the department to release confidential
information, after providing the department with
reasonable notice and an opportunity to be heard and then
determining that the information is relevant and necessary
to the trial of the matter before the court and unavailable
from any other source. This subsection shall not be
construed to relieve any court of its duty to conduct
hearings and make findings required under relevant
federal law before ordering the release of any private
medical or mental health information or records related to
substance abuse or HIV status or treatment. The
department may surrender the requested records to the
court, for in camera review, if surrender is necessary to
make the required determinations.
...
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N.C. Gen. Stat. § 7B-2901(b) (emphasis added). The plain, unambiguous language of
the statute requires DSS to receive notice and an opportunity to be heard before
Plaintiff can examine the DSS records to which she is granted access under the trial
court order. “Where the language of a statute is clear and unambiguous, there is no
room for judicial construction and the courts must construe the statute using its plain
meaning.” See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d
134, 136 (1990). Here, therefore, the trial court had to give DSS notice and an
opportunity to be heard. Since nothing in our record indicates DSS received such
notice or chance to be heard, I would hold the trial court erred.
¶ 43 This case also involves the scenario this statute aims to avoid. Section 7B-
2901(b) provides for DSS to keep a list of sensitive records under protective custody
and then includes a catch-all provision to protect “other information which the court
finds should be protected from public inspection in the best interests of the juvenile.”
N.C. Gen. Stat. § 7B-2901(b). And as noted above, these same provisions apply to the
records of the law enforcement agencies to the extent the records deal with
investigations of child abuse, under North Carolina General Statute § 132-1.4(l).
Based on the catch-all provision, the purpose of the statute is to protect sensitive
information in the best interest of the juvenile. Section 7B-2901(b)(2) builds on that
purpose by placing upon trial courts a further duty to help protect the sensitive
information by ensuring DSS has notice and an opportunity to be heard before
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determining if the information “is relevant and necessary to the trial of the matter
before the court and unavailable from any other source.” Id. at (b)(2). These
procedures help protect victims of abuse, in this case sexual abuse, who are not
parties to the case because they ensure someone—specifically the trial court—can
decide what should and should not be released and any conditions placed on the
release. For example, even if the records Plaintiff seeks here are released to Plaintiff,
they would likely be placed under seal and not simply released to the Plaintiff’s
attorney with no restrictions on how they are used or shared. By not following the
DSS notification procedures laid out in § 7B-2901(b)(2), the trial court has not fulfilled
its duty under the statute to protect this sensitive information about victims of sexual
abuse.
¶ 44 Finally, the Majority Opinion implies this Court’s writ of supersedeas will
remain in effect to stay the ex parte discovery order before us despite the dismissal of
the appeal, thus preventing the wholesale release of records of sexual abuse of
children, now adults, who may be harmed by the public release of this information.
But the writ will not prevent the release of the records because it will no longer have
any effect. “‘Supersedeas’ is a writ issuing from an appellate court to preserve the
status quo pending the exercise of the appellate court’s jurisdiction, is issued only to
hold the matter in abeyance pending review, and may be issued only by the court in
which an appeal is pending.” City of New Bern v. Walker, 255 N.C. 355, 356, 121
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S.E.2d 544, 545–46 (1961) (per curiam) (all emphasis included has been added;
emphasis from original removed) (citing Seaboard Air-Line R. Co. v. Horton, 176 N.C.
115, 96 S.E.2d 956 (1918)). In other words, the writ of supersedeas only applies when
the appeal is pending before this Court. See Craver v. Craver, 298 N.C. 231, 237–38,
258 S.E.2d 357, 362 (1979) (“The writ of supersedeas may issue only in the exercise
of, and as ancillary to, the revising power of an appellate court; its office is to preserve
the status quo pending the exercise of appellate jurisdiction.” (emphasis added after
“status quo”)). The writ of supersedeas in this case recognizes that it only applies
while this appeal is pending; it states, the ex parte order on appeal “is hereby stayed
pending the outcome of petitioner’s [Defendants’] appeal to this Court.”4 COA# P21-
243, Dkt. No. 1 (24 August 2021) (emphasis added). The Majority Opinion dismisses
Defendants’ appeal, and thus the writ of supersedeas can have no further effect; there
is no longer an appeal pending to which its power can attach. The writ of supersedeas
here and writs of supersedeas in general only apply when the appeal in connection
with which they are issued is pending, and once the Majority Opinion dismisses the
4The writ of supersedeas provides as follows: “The order entered by Judge Lisa C. Bell on
11 June 2021 ordering production of records in the custody of the Winston-Salem Police
Department, the Richmond County Sheriff’s office, the Richmond County Department of
Social Services, the Richmond County Juvenile Division, the Richmond County Court, the
Forsyth County Sheriff’s office, and the Forsyth County Department of Social Services is
hereby stayed pending the outcome of petitioner’s appeal to this Court.” COA# P21-243,
Dkt. No. 1 (24 August 2021). The order referenced in the writ of supersedeas is the order
on appeal here.
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interlocutory appeal, the plain language of the writ here instructs the order on appeal
is no longer stayed.
¶ 45 Because I believe Defendants have shown a substantial right on both due
process and statutory grounds, I would not dismiss their appeal as interlocutory.
Further, because Defendants were entitled to notice of the hearing of Plaintiff’s
motion by the trial court and the plain, unambiguous language of § 7B-2901(b) also
requires the trial court to give DSS notice and the chance to be heard before releasing
the DSS records at issue, I would find the trial court erred by entering the order ex
parte and without prior notice to either Defendants or DSS. Lastly, since the Majority
Opinion dismisses this appeal, the writ of supersedeas provides no further protection.
¶ 46 Respectfully, I dissent.