Velez v. DICK KEFFER PONTIAC GMC TRUCK, INC.

• Decision Date: 03 July 2001
• Docket Number: No. COA00-786.,COA00-786.
• Citation: 551 S.E.2d 873,144 NC App. 589
• Parties: Stewart C. VELEZ, Plaintiff, v. DICK KEFFER PONTIAC GMC TRUCK, INC., and Centura Bank, Defendants.
• Court: North Carolina Court of Appeals

551 S.E.2d 873

144 NC App. 589

Stewart C. VELEZ, Plaintiff, v. DICK KEFFER PONTIAC GMC TRUCK, INC., and Centura Bank, Defendants.

No. COA00-786.

Court of Appeals of North Carolina.

July 3, 2001.

Homesley, Jones, Gaines, Homesley & Dudley, by L. Ragan Dudley, Statesville, for the plaintiff-appellee.

James, McElroy & Diehl, P.A., by John S. Arrowood, Charlotte, for defendant-appellant Centura Bank.

EAGLES, Chief Judge.

Defendant Centura Bank, (hereinafter "Centura"), appeals from an interlocutory order compelling certain discovery. Because we conclude that this discovery order does not affect a substantial right of Centura, we dismiss the appeal.

Plaintiff filed a complaint on 26 April 1999 seeking compensatory and punitive damages, treble damages and injunctive relief for fraud, misrepresentation and unfair and deceptive trade practices, stemming from plaintiff's purchase of a 1998 Pontiac Sunfire. On 17 May 1999, plaintiff served interrogatories and requests for production of documents on Defendant Dick Keffer Pontiac GMC-Truck, Inc. (hereinafter "Dick Keffer") and Centura. During the 25 October 1999 civil session, the trial court heard plaintiff's motion to compel discovery from Dick Keffer for failure to provide certain documents and answers to the discovery requests. On 9 December 1999, the trial court issued a protective order and compelled discovery from Dick Keffer.

Also on 9 December 1999, the trial court heard plaintiff's motion to compel discovery from Centura. The trial court took the matter under advisement without objection. Before the trial court ruled on the motions against Centura, Dick Keffer filed notice of appeal on 7 January 2000. In its 19 April 2000 order compelling discovery from Centura, the trial court found as a fact that the discovery issues between plaintiff and Dick Keffer and plaintiff and Centura were not affected by each other. It is from the 19 April 2000 order that Centura appeals.

A. Jurisdiction

Centura first argues that the trial court was without jurisdiction to enter the April 2000 order due to the pending appeal of Dick Keffer. We disagree.

Dick Keffer's appeal has been dismissed today by this Court because it is interlocutory and fails to assert a substantial right. When a litigant appeals from an appealable interlocutory order, the appeal operates as a stay of all proceedings in the trial court relating to the issues included therein. G.S. 1-294; Lawrence v. Lawrence, 226 N.C. 221, 37 S.E.2d 496 (1946); Veazey v. Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 382 (1950).

However, a litigant cannot deprive the trial court of jurisdiction to determine a case on its merits by appealing from a nonappealable interlocutory order of the trial court. Veazey, 231 N.C. at 364, 57 S.E.2d at 382. Our Supreme Court in Veazey further stated as follows:

Our conclusion on this aspect of the controversy finds full sanction in previous decisions of this Court adjudging that when an appeal is taken to the Supreme Court from an interlocutory order of the Superior Court which is not subject to appeal, the Superior Court need not stay proceedings, but may disregard the appeal and proceed to try the action while the appeal on the interlocutory matter is in the Supreme Court.

Id. at 364, 57 S.E.2d at 383; State v. Davis, 203 N.C. 316, 166 S.E. 292 (1932); Goodman v. Goodman, 201 N.C. 794, 161 S.E. 688 (1931).

Our Supreme Court in Harrell v. Harrell, 253 N.C. 758, 117 S.E.2d 728 (1961), held "where an interlocutory order is not subject to appeal, the Superior Court need not stay proceedings pending dismissal of the appeal in Supreme Court." Id. at 761, 117 S.E.2d at 730. In T & T Development Co. v. Southern Nat. Bank of S.C., 125 N.C.App. 600, 603, 481 S.E.2d 347, 348 (1997), plaintiffs appealed the denial of a motion in limine. Id. The trial court proceeded with trial and plaintiffs refused to put on any evidence. This Court held: "In this case because plaintiffs had no right to appeal the granting of the motion in limine, the trial court was not deprived of jurisdiction and did not err in calling the case for trial and dismissing it when plaintiffs failed to offer any evidence. See N.C.G.S. § 1A-1, Rule 41(b) (1990) (allowing dismissal of action for failure to prosecute)." T & T Development, 125 N.C.App. at 603, 481 S.E.2d. at 348.

Although both of these cases were heard by this Court 14 May 2001, Dick Keffer's notice of appeal was filed 7 January 2000 and the record was settled by 14 February 2000. Centura's notice of appeal was filed 12 May 2000 and the record was settled by 7 July 2000. These appeals were heard together because of factual similarities. Since Dick Keffer had no right of immediate appeal regarding the discovery order, there was no stay of proceedings. Veazey, 231 N.C. at 364, 57 S.E.2d at 383. Thus, on this record we hold that the trial court retained jurisdiction over all matters relating to Iredell County No. 99 CVS 911.

B. Financial Privacy Act

Centura next argues that interrogatories # 10 and #11 and request for production of documents # 5 are in violation of the Financial Privacy Act, Chapter 53B of the General Statutes. Thus, although this appeal is interlocutory, Centura argues that it has asserted a substantial right, which if not immediately addressed will work irreparable injury. J & B Slurry Seal Co. v. Mid—South Aviation, Inc., 88 N.C.App. 1, 5, 362 S.E.2d 812, 815 (1987). While certainly if the Financial Privacy Act was implicated here, it would raise a substantial right; we disagree that the act covers this discovery request.

It is the stated policy of the Financial Privacy Act "that financial records should be treated as confidential and that no financial institution may provide to any government authority and no government authority may have access to any financial records except in accordance with the provisions of this Chapter." G.S. 53B-3 (Reg.Sess., 1986). The statute further defines a "government authority" as "an agency or department of the State or of any of its political subdivisions, including any officer, employee, or agent thereof." G.S. 53B-2(4). The statute denotes the situations under which a government authority may access a customer's financial record held by a financial institution. There is a "catchall provision" which has specific mandatory service requirements that are delineated in G.S. 53B-5. Centura argues that in order for the Superior Court to order production of these interrogatories, the Superior Court must ensure that the service requirements of G.S. 53B-5 have been met. We disagree.

The plaintiff made this discovery request pursuant to N.C.R. Civ. P. 33 and 34. That Centura objected and the Superior Court compelled discovery pursuant to a motion made by plaintiff does not somehow transform the plaintiff's discovery request into a request by a government authority. Discovery rules "should be liberally construed in order to accomplish the important goal of `facilitat[ing] the disclosure prior to trial of any unprivileged information that is relevant and material to the lawsuit so as to permit the narrowing and sharpening of the basic issues and facts that will require trial.'" Williams v. N.C. Dept. of Correction, 120 N.C.App. 356, 359, 462 S.E.2d 545, 547 (1995); American Tel. & Tel. Co. v. Griffin, 39 N.C.App. 721, 726, 251 S.E.2d 885, 888 (1979). To hold that the Financial Privacy Act applies to discovery requests made by private parties in the midst of litigation would severely limit the application of available discovery methods. Financial institutions could use the act inappropriately as a sword to frustrate any litigant's attempt to hold the institution liable for its actions, rather than as a shield to protect customers from unwarranted government intrusion. The General Assembly, when enacting the Financial Privacy Act, did not intend to relieve financial institutions from accountability for their actions by permitting the institutions to refuse to participate in discovery in litigation.

"[W]here a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded." Petty v. Owen, 140 N.C.App. 494, 499, 537 S.E.2d 216, 219 (2000); Mazda Motors v. Southwestern Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979). Interpretations that would create a conflict between two or more statutes are to be avoided, and statutes should be reconciled with each other whenever possible. Clark v. ITT Grinnell Industrial Piping, Inc., 141 N.C.App. 417, 427, 539 S.E.2d 369, 375 (2000); Meyer v. Walls, 122 N.C.App. 507, 512, 471 S.E.2d 422, 427 (1996). Accordingly, we hold that although the Superior Court is, in a general sense, an agency of the State, the General Assembly did not intend for financial institutions to be able to utilize the Financial Privacy Act to shield themselves from private rights of action and court orders. Otherwise, financial institutions could regularly refuse to comply with litigation-related discovery requests from private entities, force litigants to resort to motions to compel and then be shielded from production by their interpretation of the stringent...