The Royal Oak Concerned Citizens Ass'n v. Brunswick Cnty.

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.