France v. France

• Decision Date: 31 December 2012
• Docket Number: No. COA12–284.,COA12–284.
• Citation: 738 S.E.2d 180
• Parties: Brian Z. FRANCE, Plaintiff, v. Megan P. FRANCE, Defendant.
• Court: North Carolina Court of Appeals

738 S.E.2d 180

Brian Z. FRANCE, Plaintiff,

v.Megan P. FRANCE, Defendant.

No. COA12–284.

Court of Appeals of North Carolina.

Dec. 31, 2012.

Appeal by Plaintiff from order entered 18 December 2009 by Judge Jena P. Culler in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 September 2012.

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

Davis Harwell & Biggs, P.A., Winston–Salem, by Loretta C. Biggs and Joslin Davis, and Robinson, Bradshaw & Hinson, P.A., Charlotte, by Martin L. Brackett, Jr.

Higgins & Owens, PLLC, Charlotte, by Raymond E. Owens, Jr., for the Charlotte Observer and WCNC, amicus curiae.

THIGPEN, Judge.

Brian France (“Plaintiff”) appeals from an order unsealing documents associated with the actions in this case. We find no abuse of discretion in the order of the trial court, which finds and concludes there has been a substantial change in circumstances. Therefore, we affirm the order of the trial court.

I. Facts

The evidence of record tends to show the following: Plaintiff and Megan France (“Defendant”) have been married to each other twice. Each marriage lasted approximately two years. Prior to their second marriage, on 27 December 2007, Plaintiff and Defendant entered into a prenuptial agreement (“the Agreement”), replacing an earlier prenuptial agreement, which provided financial benefits to Defendant in consideration for which Defendant agreed to abide by the terms of the Agreement. The Agreement contained the following confidentiality provision:

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.

France v. France, 209 N.C.App. 406, 407–08, 705 S.E.2d 399, 402 (2011) (alterations in original).

On 11 September 2008, Plaintiff filed a complaint (File No. 08 CVD 20661), alleging Defendant had breached the Agreement and seeking an order directing the clerk of court to seal Plaintiff's amended complaint, which Plaintiff had not yet filed, and any future documents filed in the action. The trial court, Judge N. Todd Owens (“Judge Owens”) presiding, granted Plaintiff's motion to seal the documents associated with the case in File No. 08 CVD 20661 and issued an order on 18 December 2008, which provided the following rationale for the trial court's ruling:

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.

Based on the foregoing, the trial court concluded:

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.

In the order, Judge Owens also provided the following specifications:

Once sealed, such pleadings and documents shall be accessible only to the District Court, any appellate court, the parties, attorneys for the parties and paralegals and other staff members of such attorney, and may be unsealed only by further order of the Court, after reasonable notice to the parties.¹

On 31 December 2008, Plaintiff filed, under seal, the amended complaint with a different file number, File No. 08 CVS 28389. The amended complaint set forth the terms of the Agreement and specified how Defendant breached those terms. Therefore, the amended complaint necessarily disclosed the terms of the Agreement and hypothetically may have constituted a breach of the confidentiality provision in the Agreement, but for the fact that the amended complaint was filed under seal.

The parties filed a series of discovery and substantive motions in the action under File No. 08 CVS 28389. On 29 September 2009, in anticipation of hearings on the foregoing motions, Plaintiff filed a motion requesting that the trial court close proceedings to the public. Defendant joined Plaintiff in the motion to close proceedings. The trial court, Judge Jena P. Culler (“Judge Culler”) presiding, heard the foregoing motion to close proceedings, along with several other motions, on 15 October 2009, after which Judge Culler denied the motion to close proceedings. Judge Culler entered a written order on 13 November 2009 concluding that “[p]roceedings in this case shall be conducted in open court” and providing the following rationale for the decision:

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 13 November 2009 order. Plaintiff also moved in open court for a stay, which was denied. Plaintiff filed notice of appeal from this order.

On 17 November 2009, The Charlotte Observer Publishing Company and WCNC–TV, Inc. (“Media Movants”) filed a motion requesting that Judge Culler (1) “[o]rder [that] the courtroom remain open to the public and press in both 08 CVD 20661 and 08 CVD 28389” and (2) 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 acknowledged both Judge Owens' order—which ordered that the pleadings and documents associated with the action in File No. 08 CVD 20661 shall be sealed—and her own order that the proceedings of the action in File No. 08 CVD 28389 shall remain open to the public. 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 reasoned 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 reasoned:

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[.]

On 21 December 2009, Plaintiff filed a notice of appeal from Judge Culler's 18 December 2009 order. Plaintiff also filed a motion to stay this order, which was denied.

On 22 December 2009, Plaintiff filed a motion in this Court to stay Judge Culler's 13 November 2009 and 18 December 2009 orders. Our Court granted Plaintiff's motion to stay “pending determination of [Plaintiff's] petition for writ of supersedeas” by order entered 23 December 2009. 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.”

On 1 February 2011, this Court issued an opinion, France, 209 N.C.App. 406, 705 S.E.2d 399, resolving the first appeal. This Court concluded that “Plaintiff's appeal of Judge Culler's first order on 13 November 2009 divested the trial court of jurisdiction in the matter 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.” Id. at 411, 705 S.E.2d at 404. This Court vacated the 18 December 2009 order.

This Court further held that “[b]ecause Judge Culler's first order did not rule that the pleadings and documents in these actions should be unsealed, Judge Culler's first order does not impermissibly overrule Judge Owens' order.” Id. at 412, 705 S.E.2d at 405. This Court...