Harbour Point Homeowners' Ass'n Inc v. Djf Enter.S Inc, COA09-1545.
| Decision Date | 03 August 2010 |
| Docket Number | No. COA09-1545.,COA09-1545. |
| Citation | 697 S.E.2d 439 |
| Court | North Carolina Court of Appeals |
| Parties | HARBOUR POINT HOMEOWNERS' ASSOCIATION, INC., by and through its BOARD OF DIRECTORS, individually and in its representative capacity on behalf of its members, Plaintiffv.DJF ENTERPRISES, INC., Forrest Development Company, Inc.; Davy Group Construction, Inc.; Wrangell Homes, Inc., HPPI Investments, LLC, Coastal Roofing Company, Inc., Georgia-Pacific Corporation, and CraftMaster Manufacturing, Inc., Defendants. |
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Appeal by plaintiff from order entered 15 May 2009 by Judge Richard T. Brown in New Hanover County Superior Court. Heard in the Court of Appeals 26 April 2010.
Block, Crouch, Keeter, Behm & Sayed, L.L.P., Wilmington, by Auley M. Crouch, III, and Christopher K. Behm, for Plaintiff-Appellant.
Johnston, Allison & Hord, P.A., Charlotte, by Martin L. White, and Robert L. Burchette, for Defendant-Appellee.
Plaintiff Harbour Point Homeowners' Association, Inc., appeals from an order granting, in part, a motion by Defendant Georgia-Pacific Corporation seeking the return of certain documents that Defendant inadvertently provided to Plaintiff during discovery. After careful consideration of the record in light of the applicable law, we conclude that Plaintiff's appeal has been taken from an unappealable interlocutory order and should be dismissed.
Plaintiff is a non-profit corporation organized for the purpose of representing homeowners in Harbour Point, which is a development comprised of ninety town homes located in New Hanover County, North Carolina. On 22 February 2008, Plaintiff filed a lengthy complaint 1 seeking damages from eight defendants, each of whom had some role in the development or construction of Harbour Point. According to Plaintiff's complaint, there were “substantial and numerous latent defects” in the buildings that made up Harbour Point. As a result, Plaintiff asserted the following claims:
1. A negligence claim against DJF Enterprises, Forrest Development Company, Davy Group Construction, Wrangell Homes, HPPI Investments, and Coastal Roofing.
2. A negligence per se claim against DJF Enterprises, Forrest Development Company, Davy Group Construction, Wrangell Homes, HPPI Investments, and Coastal Roofing.
Defendant is a corporation engaged in the manufacture and sale of building materials. In its complaint, Plaintiff alleged that Defendant had previously manufactured a building material known as “PrimeTrim,” which was used in the construction of some of the Harbour Point town homes; that PrimeTrim had numerous defects; and that the use of PrimeTrim in town homes located at Harbour Point had resulted in damage to buildings and common areas within Harbour Point. As a result, Plaintiff alleged that it was entitled to relief from Defendant under four different legal theories based upon the allegedly defective nature of PrimeTrim.
On 11 June 2008, this case was designated an exceptional case by the Chief Justice and assigned to Judge John W. Smith. On 30 October 2008, Defendant “filed a motion to compel arbitration and stay litigation of [Plaintiffs'] claims against [Defendant, and on] ... 20 November 2008, the trial court entered an order denying [Defendant's] motion to compel arbitration and to stay litigation[.]” Harbour Point Homeowners' Ass'n v. DJF Enters., ---N.C.App. ----, ----, 688 S.E.2d 47, 49 disc. review denied, 364 N.C. 239, 698 S.E.2d 396 (2010) ( Harbour Point I ). In light of Defendant's appeal from the denial of its motion to compel arbitration, this case was stayed until 5 January 2010, when this Court filed its opinion in Harbour Point I affirming the trial court's order.
This appeal arises from a dispute stemming from the discovery process. On 9 April 2008, Plaintiff served Defendant with Interrogatories and Requests for Production of Documents. Between 15 August 2008 and 8 October 2008, Defendant provided discovery responses to Plaintiff. On 30 January 2009, Defendant wrote to Plaintiff for the purpose of requesting that several documents provided during discovery be returned on the grounds that Defendant had inadvertently delivered privileged documents to Plaintiff. After Plaintiff disagreed with Defendant's characterization of the documents as privileged and refused to return them, Defendant filed an amended motion for a protective order and for an order compelling Plaintiff to return the documents on 27 February 2009. On 4 March 2009, Plaintiff filed motions seeking the entry of orders issuing commissions allowing Plaintiff to depose certain defense witnesses during the pendency of Defendant's appeal.
On 6 March 2009, a hearing was conducted concerning Defendant's motion for the entry of a protective order and for recall of privileged documents and Plaintiff's motion for commissions to take depositions.2 On 15 May 2009, the trial court entered an order granting Defendant's motion for recall of certain documents in part and denying Plaintiff's motion for the issuance of commissions to take depositions. Plaintiff noted an appeal to this Court from the trial court's order.
An order is either “interlocutory or the final determination of the rights of the parties.” N.C. Gen.Stat. § 1A-1, Rule 54(a) (2009). “An 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). The order from which Plaintiff has appealed directs Plaintiff to return a document that Defendant provided during discovery and denies Plaintiff's motion for the issuance of commissions allowing the taking of depositions during the pendency of Defendant's earlier appeal. Since the order from which Plaintiff has appealed “does not dispose of the case,” it is interlocutory. “Ordinarily, an appeal will lie only from a final judgment.” Steele v. Moore-Flesher Hauling Co., 260 N.C. 486, 491, 133 S.E.2d 197, 201 (1963) (citing Perkins v. Sykes, 231 N.C. 488, 490, 57 S.E.2d 645, 646 (1950)). As a result, we must first consider whether Plaintiff is entitled to appellate review of this interlocutory order.
On appeal, Plaintiff first asserts that “[t]he [trial court's order was] certified [for] immediate appeal pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure.” N.C. Gen.Stat. § 1A-1, Rule 54(b), provides, in pertinent part, that:
When more than one claim for relief is presented in an action, ... or when multiple parties are involved, the court may enter a final judgment as to one or more but fewer than all of the claims or parties only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal[.]
Plaintiff does not contend that the trial court has entered a “final judgment” with regards to any party or claim. “[T]he trial court may not, by certification, render its decree immediately appealable if ‘[it] is not a final judgment.’ ” Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) ().3 As a result, since the order in question was not a final judgment with respect to any claim or party, we conclude that the trial court's order was not subject to certification for immediate review pursuant to N.C. Gen.Stat. § 1A-1, Rule 54(b), and that no immediate appeal from the trial court's order is available on this basis.
Next, Plaintiff argues that it is entitled to immediate review of the trial court's order because its appeal has been taken from “an interlocutory order affecting a substantial right as described in N.C. Gen.Stat. §§ 1-277 and 7A-27(d)(1) and as recognized in Dworsky v. Travelers Ins. Co., 49 N.C.App. 446, 271 S.E.2d 522 (1980).” After carefully reviewing Plaintiff's arguments, we conclude that Plaintiff's argument lacks merit.
N.C. Gen.Stat. § 1-277(a) provides that an “appeal may be taken from every judicial order or determination of a judge of a superior or district court ... which affects a substantial right claimed in any action or proceeding [.]” Similarly, N.C. Gen.Stat. § 7A-27(d) allows an appeal to be taken from an “interlocutory order or judgment” that “[a]ffects a substantial right [.]” As a result, the ultimate issue which must be resolved in order for us to determine whether we are entitled to decide ...
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