France v. France

• Decision Date: 01 February 2011
• Docket Number: Nos. COA10–313,COA10–425.,s. COA10–313
• Citation: 705 S.E.2d 399
• Parties: Brian Z. FRANCE, Plaintiff–Appellant,v.Megan P. FRANCE, Defendant–Appellee.
• Court: North Carolina Court of Appeals

705 S.E.2d 399

Brian Z. FRANCE, Plaintiff–Appellant,

v.Megan P. FRANCE, Defendant–Appellee.

Nos. COA10–313

COA10–425.

Court of Appeals of North Carolina.

Feb. 1, 2011.

OPINION TEXT STARTS HERE

Appeals by Plaintiff from orders entered 13 November 2009 (COA10–313) and 18 December 2009 (COA10–425) by Judge Jena P. Culler in District Court, Mecklenburg County. Heard in the Court of Appeals 28 September 2010. Pursuant to N.C.R.App. P. 40, these cases were consolidated for hearing as the issues presented by Plaintiff's appeals to this Court involve common questions of law.

Horack Talley Pharr & Lowndes, P.A., Charlotte, by Kary C. Watson and Gena Graham Morris; and Alston & Bird, LLP, by John E. Stephenson, Jr., for Plaintiff–Appellant.

Davis & Harwell, P.A., Winston-Salem, by Joslin Davis and Loretta C. Biggs, for Defendant–Appellee.K & L Gates LLP, Charlotte, by Raymond E. Owens, Jr. and Christopher C. Lam, for Media Movants.

McGEE, Judge.

Plaintiff and Defendant entered into a Contract of Separation, Property Settlement, Child Support, Child Custody and Alimony Agreement (the Agreement) on 17 December 2007. One of the provisions of the Agreement concerned confidentiality. Plaintiff and Defendant agreed that “neither party [would] disclose any financial information relating to the other party or any provision of th[e] Agreement to anyone except” certain professionals, such as their attorneys and financial advisors, unless compelled by law. Plaintiff and Defendant further agreed to keep private certain personal information regarding each other “unless either party is legally compelled to disclose any such information[.]” The Agreement stated that breach of the confidentiality provision would constitute a material breach. In the final paragraph of the confidentiality clause, Plaintiff and Defendant agreed

that if either of them institutes or responds to litigation that relates to and requires disclosure of any of the terms of th[e] Agreement, [Plaintiff and Defendant] agree to use their best efforts so that any reference to the terms of th[e] Agreement and the Agreement itself will be filed under seal, with prior notice to the other party.

Plaintiff filed a complaint against Defendant on 11 September 2008, 08 CVD 20661, seeking an order directing the Mecklenburg County Clerk of Superior Court to seal Plaintiff's complaint and any future pleadings and documents filed in that action. Plaintiff amended his complaint on 17 September 2008. Judge N. Todd Owens issued an order (Judge Owens' order) on 18 December 2008 in which he ruled:

The Clerk of Superior Court shall seal the pleadings and other documents [and][t]he Clerk ... is directed to file under seal any pleadings and documents filed in any subsequent actions between the parties related to the Agreement [and all such pleadings, documents, and orders] may be unsealed only by further order of the [c]ourt, after reasonable notice to the parties.

Judge Owens based his ruling on conclusions of law ¹ that:

2. There is a compelling countervailing public interest in protecting the privacy of the parties as relates to the provisions of the Agreement concerning their young children and their financial affairs, and in avoiding damage or harm to the parties, their business interests, and their children which could result from public access to such provisions of the Agreement.

3. There is a compelling countervailing public interest in protecting the sanctity of contracts such as the Agreement, where people bargain for and agree upon a mechanism to resolve future disputes in a confidential manner and other contract terms which are not contrary to law, and where each party relies on the other party to perform his or her obligations under the contract.

4. The aforesaid countervailing public interests in paragraphs 2 and 3 above outweigh the public's interest in access to the documents filed in this court proceeding and in future proceedings between the parties concerning the Agreement.

5. The Court has considered whether there are alternatives to sealing the court files in order to protect the public interests referred to in paragraphs 2 and 3 above, and finds there are no such alternatives.

Plaintiff then filed a new complaint, under seal, on 31 December 2008 (the complaint), 08 CVS 28389, in which Plaintiff alleged Defendant had violated certain terms of the Agreement, including the confidentiality clause. Plaintiff specifically referenced Judge Owens' order and incorporated it in the complaint. Plaintiff's first claim for relief was for rescission of the Agreement, which, we note, would render void the confidentiality clause. Plaintiff's alternate claims for relief were for specific performance and breach of contract. Defendant filed an answer, affirmative defenses, and counterclaim on 5 March 2009.

Plaintiff filed motions to seal the proceedings and for a preliminary injunction on 29 September 2009. These motions were heard before Judge Jena P. Culler on 15 October 2009. Defendant joined Plaintiff in seeking to have the proceedings in the action closed. By order filed 13 November 2009 (Judge Culler's first order), Judge Culler denied both Plaintiff's motion to close the proceedings and Plaintiff's motion for a preliminary injunction. Judge Culler further ordered: “Proceedings in this case shall be conducted in open court.” Judge Culler based her ruling on her conclusion of law that: “Although both parties affirmatively sought the relief of closing the court proceedings in this litigation, there are no compelling countervailing public interests as related to these parties which outweigh the public's right and access to open court proceedings.” Plaintiff appealed Judge Culler's first order on 13 November 2009.

The Charlotte Observer Publishing Company and WCNC–TV, Inc. (Media Movants) filed a motion to determine access to judicial proceedings and documents in these matters on 17 November 2009, whereby they requested that Judge Culler “[o]rder [that] the courtroom remain open to the public and press in both 08 CVD 20661 and 08 CVD 28389” and that she also order that “the records and court files in both [actions] be unsealed[.]” Judge Culler heard Media Movant's motion on 11 December 2009. In an order filed 18 December 2009 (Judge Culler's second order), Judge Culler acknowledged Judge Owens' order. In Judge Culler's second order, she stated that she had previously ordered the proceedings to be open. Judge Culler then ordered that all “proceedings in connection with 08 CVD 20661 shall be open to the public [and that] the court has already ordered that all courtroom proceedings in connection with 08 CVD 28389 shall be open, and that order has been appealed [and that all court files relating to both 08 CVD 20661 and 08 CVD 28389] shall be unsealed.” Judge Culler based her rulings on conclusions of law that there were “no compelling countervailing public or governmental interest[s] sufficient” to keep the court filings under seal, or to conduct the proceedings in a closed courtroom. Judge Culler further concluded that:

4. There [are] no compelling countervailing public or governmental interest[s] to be protected as it relates to the parties that outweighs the public's longstanding presumptive right to open courts as espoused in the North Carolina Constitution, North Carolina statutory law, ... and the related case law[.]

Judge Culler's second order was to be “effective at 12:00 p.m. on December 31, 2009.” Plaintiff filed notice of appeal from Judge Culler's second order on 21 December 2009 and also filed a motion to stay Judge Culler's second order. In an order entered that same day, Judge Culler denied Plaintiff's motion to stay. By motion filed 22 December 2009, Plaintiff moved our Court to stay Judge Culler's first and second orders. By order entered 23 December 2009, our Court granted Plaintiff's motion to stay “pending determination of [Plaintiff's] petition for writ of supersedeas.” On 4 January 2010, our Court granted Plaintiff's petition for writ of supersedeas, and stayed implementation of Judge Culler's first and second orders “pending further orders of this Court.”

Plaintiff's Second Appeal (COA10–425)

Plaintiff appealed Judge Culler's first order on 13 November 2009. As our Court held in RPR & Assocs. v. University of N.C.-Chapel Hill, 153 N.C.App. 342, 346–47, 570 S.E.2d 510, 513–14 (2002),

[a]s a general rule, once a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio. See Bowen v. Motor Co., 292 N.C. 633, 635, 234 S.E.2d 748, 749 (1977); Sink v. Easter, 288 N.C. 183, 197, 217 S.E.2d 532, 541 (1975). Functus officio, which translates from Latin as “having performed his o[r] her office,” is defined as being “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” Thus, when a court is functus officio, it has completed its duties pending the decision of the appellate court. The principle of functus officio stems from the general rule that two courts cannot ordinarily have jurisdiction of the same case at the same time. See Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 881 (1971).

It follows from the principle of functus officio that if a party appeals an immediately appealable interlocutory order, the trial court has no authority, pending the appeal, to proceed[.]

Judge Culler's second order was entered on 18 December 2009, following a hearing that was held 11 December 2009. Plaintiff's appeal of Judge Culler's first order on 13 November 2009 divested the trial court of jurisdiction in the matter ² and jurisdiction transferred to this Court. Thus, Judge Culler's second order is a nullity because the trial court was without jurisdiction to hear the matter on 11 December 2009. See Hall v. Cohen, 177 N.C.App. 456, 458, 628 S.E.2d 469, 471 (2006) (“As a general rule, an appellate court's jurisdiction trumps...