Medlin v. North Carolina Specialty Hospital, LLC

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.

Id.

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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.