Maldjian v. Bloomquist, COA15–697.

Docket NºNo. COA15–697.
Citation782 S.E.2d 80, 245 N.C.App. 222
Case DateFebruary 02, 2016
CourtCourt of Appeal of North Carolina (US)

245 N.C.App. 222
782 S.E.2d 80

Joseph A. MALDJIAN and Mariana Maldjian, Plaintiffs,
Charles R. BLOOMQUIST, Caroline Bloomquist, Sidney Hawes, and Kate Hawes, Defendants.

No. COA15–697.

Court of Appeals of North Carolina.

Feb. 2, 2016.

Fitzgerald Litigation, by Andrew L. Fitzgerald, for plaintiffs.

Wilson Helms & Cartledge, LLP, by Stuart H. Russell, Winston–Salem and Lorin J. Lapidus, for defendants.

ELMORE, Judge.

245 N.C.App. 223

Charles R. Bloomquist, Caroline Bloomquist, Sidney Hawes, and Kate Hawes (defendants) appeal from the trial court's order granting Joseph A. Maldjian and Mariana Maldjian's (plaintiffs) motion to compel production of Exhibit A and Exhibit B. Plaintiffs attempt to cross-appeal part of the trial court's order denying plaintiffs' motion to compel production of Exhibit C. Defendants filed a motion to dismiss plaintiffs' purported cross-appeal and a motion for sanctions. Consistent with defendants' motion, we dismiss plaintiffs' cross-appeal but we deny defendants' motion for sanctions. After careful consideration, we affirm the trial court's order.

I. Background

In 2013, the Bloomquists purchased land from plaintiffs for their daughter, Kate Hawes, and son-in-law, Sidney Hawes. Pursuant to a general warranty deed recorded 20 May 2013, plaintiffs conveyed the land at 1803 Cana Road in Mocksville (the Cana Road property) to the Bloomquists. Kate and Sidney Hawes leased the property from the Bloomquists. The substantive issue underlying this lawsuit is a dispute over the deed: the Maldjians claim that they only conveyed twenty-two acres whereas the Bloomquists claim they purchased the full sixty-two acre tract. According to the Offer to Purchase and Contract, twenty-two acres were to be surveyed. The brief description on the deed states "62.816 acres Cana Road." The current appeal only pertains to the discovery stage of the proceeding.

245 N.C.App. 224

On 26 February 2014, Mariana Maldjian e-mailed Kate and Sidney Hawes stating, inter alia,

[T]here was an error on the deed, and it listed the full 63 acres, instead of just the 22 acres that your parents had purchased....

[T]he taxes were paid for this year by Dr. Bloomquist for both your 22 acres, and for our 41 acres, and I want to facilitate the return of the tax money to Dr. Bloomquist for the tax he paid on our acreage.

I don't have your parents email [sic], so please forward this note to them also. Thank you in advance for your cooperation in correcting this matter. I think there might be some misunderstanding with the neighbors, I assured them that there is no way you would try to take advantage of a situation that was so clearly just a mistake in recording the deed!

After failing to reach an agreement regarding the deed, plaintiffs filed a complaint on 11 March 2014 asserting the following causes of action: reformation of deed, trespass, unjust enrichment, conversion, and theft. Plaintiffs later filed an amended complaint on 30 April 2014, asserting the same causes of action but adding a claim for rent against all defendants and a claim for punitive damages against the Bloomquists. The Davie County Superior Court entered an order on 2 July 2014 granting defendants' motion to dismiss plaintiffs' claims for trespass, conversion, and punitive damages with prejudice, and granting plaintiffs' oral motion to

782 S.E.2d 83

amend the amended complaint to allege that plaintiffs have no adequate remedy at law.

Plaintiffs filed a request for production of documents and first set of interrogatories on 26 March 2014. Defendants responded, asserting attorney work product and attorney-client privilege regarding question number three, and joint defense privilege and marital privilege regarding question number five. As a result, plaintiffs filed a motion to compel, requesting that defendants produce the documents that they claim are protected by the joint defense privilege. In the motion, plaintiffs included the privilege log that defendants submitted and specifically requested that defendants disclose the 26–27 February 2014 e-mails, the 26 February 2014 e-mail, and the 10 March 2014 e-mails, arguing that they are not shielded by the joint defense privilege.

245 N.C.App. 225

On 15 December 2014, the trial court held a hearing and defendants submitted the e-mails at issue for in camera review. The court designated the e-mails as Exhibit A (26 February 2014 e-mail), Exhibit B (26–27 February 2014 e-mails), and Exhibit C (10 March 2014 e-mails). On 12 February 2015, the court entered an order granting plaintiffs' motion to compel production of Exhibit A and Exhibit B, and it denied plaintiffs' motion to compel production of Exhibit C. Defendants filed notice of appeal on 23 February 2015. Plaintiffs did not file notice of appeal. In plaintiffs' brief, they purport to cross-appeal the denial of their motion regarding Exhibit C. In response, defendants filed a motion to dismiss and a motion for sanctions because plaintiffs did not include their notice of cross-appeal in the record on appeal.

II. Analysis

"An order compelling discovery is generally not immediately appealable because it is interlocutory and does not affect a substantial right that would be lost if the ruling were not reviewed before final judgment." Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999) (citations omitted). When "a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under sections 1–277(a) and 7A–27(d)(1)." Id. at 166, 522 S.E.2d at 581.

Defendants assert that this Court has jurisdiction because "this instant appeal involves an interlocutory order compelling discovery of materials purportedly protected by the work product doctrine[,]" codified at N.C. Gen.Stat. § 1A–1, Rule 26(b)(3). Defendants state that "orders compelling discovery of materials purportedly protected by ... the work product doctrine are immediately appealable[.]" Remarkably, defendants fail to cite to N.C. Gen.Stat. § 1–277(a) or N.C. Gen.Stat. § 7A–27 despite their request for sanctions against plaintiffs for violating N.C.R.App. P. 28(b)(4). Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure requires an appellant's brief to provide "[a] statement of the grounds for appellate review. Such statement shall include citation of the statute or statutes permitting appellate review."

Nonetheless, we review defendants' appeal based on their argument that the e-mails are privileged under the work product doctrine. See Sharpe, 351 N.C. at 166, 522 S.E.2d at 581 (holding that the challenged order affects a substantial right when a party asserts a statutory privilege that is not frivolous or insubstantial);

245 N.C.App. 226

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6 cases
  • Maldjian v. Bloomquist
    • United States
    • North Carolina Court of Appeals
    • 15 December 2020
    ...The background and procedural facts of this case are provided, in part, in the parties’ two related appeals: Maldjian v. Bloomquist , 245 N.C. App. 222, 782 S.E.2d 80 (2016), and Maldjian v. Bloomquist , 245 N.C. App. 328, 782 S.E.2d 121, 2016 WL 409797 (2016) (unpublished).On 19 March 2018......
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    ...––––, 777 S.E.2d 92, 102–03, (2015), review allowed, writ allowed, 368 N.C. 686, 781 S.E.2d 476 (2016) ; Maldjian v. Bloomquist, ––– N.C.App. ––––, ––––, 782 S.E.2d 80, 85 (2016).We reverse the trial court's order affirming the decision of the Assistant Clerk of Court, and remand to the tri......
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