Veitia v. Mulshine Builders LLC, COA12-309
| Decision Date | 16 October 2012 |
| Docket Number | NO. COA12-309,COA12-309 |
| Court | North Carolina Court of Appeals |
| Parties | AGUSTIN E. VEITIA, Plaintiff v. MULSHINE BUILDERS LLC, Defendant |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Watauga County
Appeal by plaintiff from order entered 21 October 2011 by Judge Mark E. Powell in Watauga County Superior Court. Heard in the Court of Appeals 29 August 2012.
Capua Law Firm, P.A., by Paul A. Capua and Michael J. Volpe, for plaintiff-appellant.
Bailey & Thomas, P.A., by John R. Fonda and David W. Bailey, Jr., for defendant-appellee.
Agustin E. Veitia ("plaintiff") appeals from an order compelling discovery in favor of Mulshine Builders, LLC ("defendant"). We dismiss in part and affirm in part.
In September 2007, plaintiff contracted with defendant to build a house located at Far Away Drive in Boone, NorthCarolina. Defendant, as the general contractor, was to coordinate and supervise the subcontractors that he hired to perform work on the premises. A year later, in late September 2008, the house burned to the ground.
The Watauga County Fire Marshal's Office investigated the fire and determined that the fire was likely caused by a painter's rags that were discarded in an open plastic garbage can. Some of defendant's employees observed the painter, Marty Green ("Green"), "throwing his painting and staining rags into an open plastic trash can."
Plaintiff claims that defendant agreed to "coordinate and oversee the work of third-parties performing work on the premises." Defendant admits that he agreed to supervise subcontractors but his supervision was limited to the individuals that he hired, not third-parties hired directly by plaintiff. Green was not one of the subcontractors defendant hired; plaintiff hired him.
Both plaintiff and defendant were insured by North Carolina Farm Bureau Mutual Insurance Company ("Farm Bureau"). On 26 September 2008, plaintiff submitted a claim for the loss of the house to Farm Bureau. Between the date of the fire and 14 October 2008, investigators from Farm Bureau determined that theamount of the loss and damage exceeded $600,000, but plaintiff's builder's risk policy only provided $250,000 of coverage. In addition, they determined that Green discarded the rags that potentially caused the fire and that plaintiff hired Green, not defendant. On 15 October 2008, Vernie Earl Fountain ("Fountain"), the Manager for the Special Investigative Unit for Farm Bureau, along with two other individuals, determined that there was no evidence of liability on the part of defendant. Since plaintiff was underinsured and Green had no assets from which plaintiff could recoup his losses, Farm Bureau decided to open a liability claim file to protect defendant because of "the anticipation of litigation against" defendant.
Plaintiff hired an independent fire investigator ("the unnamed individual" or "consultant") prior to removing the debris from the area affected by the fire ("the area"). On 16 October 2008, plaintiff's consultant inspected the area and took photographs. In addition, plaintiff removed a wire from the area in the consultant's presence.
On 13 February 2009, Farm Bureau sent plaintiff a letter indicating that their investigation revealed "no legal liability on the part of" defendant, and indicated they were unable to compensate plaintiff for his loss. On 10 November 2010,plaintiff filed a complaint against defendant alleging breach of contract, negligence and promissory estoppel. On 10 February 2011, plaintiff filed an amended complaint which added a claim for breach of an implied-in-fact contract and another count of negligent supervision. Defendant filed an answer, interrogatories and requests for production of documents. Defendant also conducted depositions to use at trial, including the deposition of plaintiff's interior decorator, Sheila Wilde ("Wilde").
On 12 September 2011, defendant filed a motion to compel discovery, seeking, inter alia, production of an investigative report prepared by the unnamed individual along with a request for the court to enter an order compelling plaintiff to answer questions regarding the identity of the unnamed individual and the nature and extent of the relationship between plaintiff and Wilde. On 21 September 2011, defendant also filed a request to inspect a wire that plaintiff had removed from the fire area. On 21 October 2011, subsequent to a hearing, the trial court granted defendant's motion to compel, in part, and denied the motion in part. The specific portions of defendant's motion to compel information that the trial court granted were, inter alia, the identity of plaintiff's fire consultant, as well asproduction of his report and the materials that had been gathered from the fire scene. Plaintiff was also required to answer questions regarding his relationship with Wilde. Plaintiff appeals. On 14 November 2011, an order was entered granting plaintiff's motion to stay the case pending resolution of the appeal.
Plaintiff argues that the trial court erred by ordering him to answer questions regarding an alleged affair with Wilde. We find that plaintiff has failed to show that discovery of this issue affects a substantial right, and thus dismiss this portion of plaintiff's appeal as interlocutory.
"Generally, there is no right of immediate appeal from interlocutory orders and judgments." Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).
[I]mmediate appeal of interlocutory orders and judgments is available in at least two instances. First, immediate review is available when the trial court enters a final judgment as to one or more, but fewer than all, claims or parties and certifies there is no just reason for delay. . . . Second, immediate appeal is available from an interlocutory order or judgment which affects a substantial right.
Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 (1999) (quotation marks omitted).
In the instant case, the trial court's order was not a "final" judgment as to one of the claims or parties. Since the trial court's order was not "final" in nature, the order is not immediately appealable by a Rule 54(b) certification. Evans v. United Servs. Auto. Ass'n, 142 N.C. App. 18, 23, 541 S.E.2d 782, 786 (2001). Therefore, plaintiff "has the burden of showing this Court that the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits." Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254 (1994). In determining whether a substantial right has been affected, "a two-part test has developed - the right itself must be substantial and the deprivation of that substantial right must potentially work injury . . . if not corrected before appeal from final judgment." Goldston, 326 N.C. at 726, 392 S.E.2d at 736.
In the instant case, plaintiff initially notes that evidence of an extramarital affair with a non-party is "inadmissible and, hence, not discoverable." However, our statutes indicate that "it is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to thediscovery of admissible evidence." N.C. Gen. Stat. § 1A-1, Rule 26(b)(1) (2011). Therefore, the fact that the information may be later inadmissible does not determine that the information is not discoverable.
Plaintiff also contends that the testimony in question affects a substantial right because it infringes on state and federal constitutional protections. Specifically, plaintiff contends if he is required to testify regarding the alleged extramarital affair his right to privacy will be violated.
As an initial matter, the trial court's order placed limitations on the questions defendant could ask:
That Defendant's motion that Plaintiff fully answer questions regarding the nature of the relationship between Plaintiff and witness [Wilde] IS GRANTED. Defendant may ask questions regarding, for example, whether the relationship was professional, platonic, friendly, antagonistic, romantic, and intimate or sexual, may ask questions regarding the duration of the relationship and may ask questions which explore the factual basis for any such label. The Defendant shall not ask questions delving into the nature and extent of private and intimate activities of Plaintiff and [Wilde], if any beyond asking about whether or not there was a sexual component to the relationship.
Plaintiff's claim that the information sought by defendant seeks to "harass" plaintiff and Wilde and "explore and introduceprejudicial testimony about a supposed affair" fails. The trial court's order specifically notes that defendant "shall not ask questions delving into the nature and extent of private and intimate activities of plaintiff" and Wilde.
Since the trial court's order protects plaintiff's right to privacy, plaintiff has the burden of demonstrating how the trial court's order affects a substantial right. One of the questions plaintiff was required to answer was whether the relationship was professional, platonic, friendly, antagonistic, romantic, and intimate or sexual. Another question was what was the duration of the relationship. Once the questions were answered, plaintiff was also required to provide the factual basis for any such label. "The appellants must present more than a bare assertion that the order affects a substantial right; they must demonstrate why the order affects a substantial right." Hoke Cnty. Bd. of Educ. v. State, 198 N.C. App. 274, 277-78, 679 S.E.2d 512, 516 (2009). Plaintiff's bare assertion that the order affects a substantial right without demonstrating why is insufficient...
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