Ventures v. Trota

• Decision Date: 01 March 2011
• Docket Number: No. COA10–779.,COA10–779.
• Citation: 708 S.E.2d 106
• Parties: K2 ASIA VENTURES, Ben C. Broocks, and James G.J. Crow, Plaintiffs,v.Robert TROTA, et al., Defendants.
• Court: North Carolina Court of Appeals

708 S.E.2d 106

K2 ASIA VENTURES, Ben C. Broocks, and James G.J. Crow, Plaintiffs,

v.Robert TROTA, et al., Defendants.

No. COA10–779.

Court of Appeals of North Carolina.

March 1, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendants Robert Trota, Carolyn T. Salud, Cristina T. Garcia, Jim Fuentabella, and Sharon Fuentabella from order entered 19 April 2010 by Judge James M. Webb in Forsyth County Superior Court. Heard in the Court of Appeals 15 December 2010.

Watts Guerra Craft LLP, by Christopher V. Goodpastor, and Blanco Tackabery & Matamoros, P.A., Winston-Salem, by Elliot Fus and Peter J. Juran, for Plaintiffs–Appellees.

Bell, Davis & Pitt, P.A., by William K. Davis, Alan M. Ruley, and Bradley C. Friesen, for Defendants–Appellants.

STEPHENS, Judge.

In April 2009, Plaintiffs filed a complaint in Forsyth County, North Carolina against Defendants, asserting various causes of action arising out of alleged breaches of alleged agreements between Plaintiffs and the various Defendants. Defendants all filed motions to dismiss Plaintiffs' action based on the court's alleged lack of personal jurisdiction. It appears from the records and briefs that Defendants agreed to postpone the hearing on their motion to allow Plaintiffs to conduct limited discovery on the issue of personal jurisdiction.

After serving and receiving Defendants' responses to interrogatories, requests for production of documents, and requests for admissions, Plaintiffs sought to supplement their jurisdictional discovery by deposing Defendants Robert Trota, Carolyn T. Salud, Cristina T. Garcia, Jim Fuentabella, and Sharon Fuentabella (“Appellants”). Appellants, who are all residents of the Philippines, objected to the depositions and moved the court for a protective order. Plaintiffs filed an amended notice of depositions, but, when they were unable to secure Appellants' appearance at the depositions, Plaintiffs filed their 10 March 2010 motion to compel depositions.

Following a 5 April 2010 hearing on the discovery motions, Judge James M. Webb entered the 19 April 2010 order (“Order”) granting Plaintiffs' motion to compel depositions and denying Appellants' motion for a protective order. The trial court ordered Appellants to appear for depositions in Glendale, California, the city of the headquarters of Defendant Max's of Manila, Inc., a corporation in which three of the Appellants are directors or officers. On 20 April 2010, Appellants appealed the trial court's Order.

On appeal, Appellants challenge the trial court's authority to (1) order Appellants to appear for depositions during the jurisdictional discovery phase, and (2) order Appellants to appear in California—“a distance of over 7,000 miles” from their residences in the Philippines—for their depositions. However, the threshold, and ultimately dispositive, issue is whether appeal of the trial court's Order is proper at this time.

What appears to be the only undisputed issue in this contentious action is that the trial court's Order is interlocutory. As such, the Order is only immediately appealable if it has been certified by the trial court (which it has not) or if it affects a substantial right of Appellants. See N.C. Gen.Stat. § 1A–1, Rule 54(b) (2009); N.C. Gen.Stat. § 1–277(a) (2009) (“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[.]”). North Carolina Courts have developed the following “two-part test” to determine whether an interlocutory order may be appealed because of its effect on a party's substantial right: (1) the right itself must be substantial and (2) the “deprivation of that substantial right must potentially work injury to plaintiff if not corrected before appeal from final judgment.” Goldston v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citing Wachovia Realty Investments v. Housing, Inc., 292 N.C. 93, 232 S.E.2d 667 (1977)).

As their first allegedly substantial right suffering deprivation by the terms of the Order, Appellants present their “right to be deposed only in the counties in which they reside.” This right, Appellants argue, arises from North Carolina Civil Procedure Rule 30(b)(1), which Appellants contend “mandates that a nonresident defendant may be deposed only in the county in which he or she resides.” Appellants claim the order deprives them of their Rule 30(b)(1) “right” to be deposed in the Philippines and is immediately appealable. Assuming, without deciding, that Rule 30(b)(1) grants a party the right to be deposed only in the county in which he resides, and assuming that the Order violates this right, the issue is whether violation of this particular right warrants immediate appeal.

As a general rule, interlocutory discovery orders are not immediately appealable. See, e.g., Dworsky v. Travelers Ins. Co., 49 N.C.App. 446, 447, 271 S.E.2d 522, 523 (1980) (“It has been held that orders denying or allowing discovery are not appealable since they are interlocutory and do not affect a substantial right which would be lost if the ruling were not reviewed before final judgment.”). Indeed, a cursory inspection of North Carolina case law reveals that orders of the trial court that allegedly violate discovery rules, or other rules of civil procedure, are rarely appropriate for immediate appeal. Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982) (appellant not entitled to immediate appeal of trial court's adverse ruling on motions to dismiss based on insufficiency of service and insufficiency of process); Green v. Maness, 69 N.C.App. 403, 316 S.E.2d 911 (1984) (noting in syllabus that this Court had previously dismissed as interlocutory an immediate appeal from discovery order that appellant contended violated Rule of Civil Procedure 26(b)(4)(a)(2)); Buchanan v. Rose, 59 N.C.App. 351, 352, 296 S.E.2d 508, 509 (1982) (an order denying a motion to amend pleadings under Rule 15(a) is an interlocutory order and not immediately appealable); Lazenby v. Godwin, 49 N.C.App. 300, 300–01, 271 S.E.2d 69, 70 (1980) (“Plaintiffs attempt to appeal from a pretrial order entered pursuant to Rule 16 of the North Carolina Rules of Civil Procedure. The pretrial order is interlocutory and is not appealable.”). Therefore, it can safely be said, stated in Appellants' terms, that while a rule of civil procedure may grant a party certain “rights,” not every violation of those “rights” is immediately appealable. The mere fact of a violation of a rule of civil procedure, without more, is insufficient to warrant immediate appeal.

However, Appellants argue that they should be entitled to immediately appeal this alleged violation because, in this case, their Rule 30(b)(1) “right” is a substantial one in that Appellants are “ foreign national nonresident defendant[s] who will more than likely suffer travel demands exponentially more burdensome than domestic nonresident defendants.” We disagree.

This Court has held that avoiding the expenditure of time and money is not a substantial right justifying immediate appeal. See Reid v. Cole, 187 N.C.App. 261, 266–67, 652 S.E.2d 718, 721–22 (2007) (stating that “ ‘avoiding the time and expense of trial is not a substantial right justifying immediate appeal’ ”) (quoting Lee v. Baxter, 147 N.C.App. 517, 520, 556 S.E.2d 36, 38 (2001)); see also Embler v. Embler, 143 N.C.App. 162, 166, 545 S.E.2d 259, 262 (2001) (“Interlocutory appeals that challenge only the financial repercussions of a separation or divorce generally have not been held to affect a substantial right.”). Because the time and money likely to be expended by Appellants as a result of the Order—possibly several days' time and the cost of a trans-Pacific flight and motel expenses—cannot be more burdensome than the time and money expended in litigating an entire trial, and because “avoiding the time and expense of a trial is not a substantial right justifying immediate appeal[,]” Reid, 187 N.C.App. at 266–67, 652 S.E.2d at 721–22, we are unpersuaded by Appellants' argument that violation of their Rule 30(b)(1) “right” is immediately appealable based on the potentially burdensome travel costs that Appellants may incur by complying with the Order.

We are likewise unpersuaded by Appellants' argument that the Order's violation of their Rule 30(b)(1) “right” is immediately appealable “for the same reason, based on the same substantial right, that orders on venue motions are immediately appealable.” While it is true that orders on motions for change of venue based on improper venue affect a substantial right and are immediately appealable, see Hawley v. Hobgood, 174 N.C.App. 606, 608, 622 S.E.2d 117, 119 (2005), we cannot conclude that the same right is affected when a party is forced to litigate in an improper venue as when a party is forced to appear for a deposition in an “improper” location. Further, any similarity between the two rights is completely overshadowed by the difference in magnitude of the burden on those rights: a decision setting venue covers the duration of the judicial process while a decision setting the location of a deposition covers only the much shorter duration of the depositions (in this case Plaintiffs seek one day of deposition per Appellant). Accordingly, we cannot conclude that the Order setting the location of the depositions is immediately appealable “for the same reason” that orders on venue motions are immediately appealable.

Because interlocutory discovery orders are generally not appealable, Dworsky, 49 N.C.App. at 447, 271 S.E.2d at 523, and because Appellants present nothing beyond their allegation of a violation of Rule 30(b)(1) to indicate a substantial right that will be irreparably harmed absent immediate appeal, we conclude that Appellants are not entitled to immediate review of the Order based on its alleged violation of Rule 30(b)(1).

Appellants further contend that the Order is immediately appealable...