NC Supreme Court: Right to Non-Mandatory Appeals From Previous Orders In A Case Not Waived Until After A Final Judgment Is Entered

Today the Supreme Court of North Carolina held that a party does not waive its right to appeal orders entered prior to a final order in a matter, as long as an immediate appeal from the prior orders was not mandatory. The case is Stanford v. Paris.

This case involved construction of a will and multiple plaintiffs and defendants. The trial court entered several orders dismissing various defendants, including one entered February 16, 2007. On July 18, 2008 the trial court entered a final consent judgment which acknowledged that the only remaining issues were one of the defendant's liability for a few remaining items in the estate. The consent judgment also stated that it was a final judgment and resolved all outstanding issues. Plaintiffs timely appealed the consent judgment, and also appealed several previously entered orders, including the February 16, 2007 order.

Defendants claimed that Plaintiffs should have filed their notice of appeal within 30days of the orders dismissing the defendants, not the final consent judgment. The trial court and the Court of Appeals dismissed Plaintiffs' appeal.

The Supreme Court granted certiorari on the question of whether Plaintiffs waived their right to appeal the February 16 2007 order by waiting to appeal until the entry of the final consent judgment. The Supreme Court held that the February 16 did not reserve all rights, claims, and liabilities in the case, and was thus interlocutory and not a final order. The February 16 order also did not affect a substantial right of Plaintiffs, and it was not certified for immediate appeal by the trial court, so Plaintiffs couldn't have successfully appealed it within 30 days of its entry. Defendants argued that Plaintiffs had to immediately appeal the order because the case involved title to land, which was a substantial right, but the Court said this was true only in the land condemnation context.

The Court concluded that because there was no final order in the case until the final consent judgment, and because Plaintiffs timely appealed the consent judgment, they did not waive their right to appeal previous orders in the case (including the February 16, 2007 order). The Court vacated the COA's dismissal of Plaintiffs' appeal and remanded for consideration on the merits.

New NC Supreme Court Opinions

The NC Supreme Court handed down seven opinions today, five of them criminal. More on one of these cases shortly.

COA: Expert Witness Costs May Only Be Awarded If the Expert Was Under Subpoena (But Language in Scheduling Order Could Waive This Requirement)

Today the COA held that in order to recover expert witness costs, the expert witness must be under subpeona. However, the Court indicated that this requirement could be waived by contrary language in a discovery scheduling order (IF the party contesting the subpoena requirement properly preserves that argument for appeal!). The case is Jarrell v. Charlotte-Mecklenburg Hospital Authority.

This case was a medical negligence action in which two doctors appeared as out-of-state expert witnesses on behalf of Defendants. Defendants were awarded costs associated with these witnesses (e.g., airfare and travel expenses).

Although the doctors were served with subpoenas to appear at the trial, the discovery scheduling order (DSO) in the case provided that any expert subpoenas "need not be issued" and the parties waived the statutory requirement that expert witnesses must be subpoenaed, "as it may affect the recovery of costs.” Even thought the COA acknowledged that "the express terms of the DSO would render inapplicable the statutory provisions detailing recovery of expert witness costs, the COA didn't consider the DSO because Plaintiffs failed to raise the issue in arguing against Defendants' motion for costs.

Plaintiffs argued that the award of costs was improper because the experts weren't properly subpoenaed. The COA noted that the trial court has explicit statutory authority to award as discretionary costs “[r]easonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings" pursuant to N.C. Gen. Stat. § 7A-305(d)(11), and that this statute must be read in conjunction with N.C. Gen. Stat. § 7A-314, which governs subpoenas. N.C. Gen. Stat. § 7A-314 provides that only costs for “witness[es] under subpoena, bound over, or recognized” may be recovered. Thus, the COA reasoned, "§ 7A-314 limits the trial court’s broader discretionary power under § 7A-305(d)(11) to award expert fees as costs only when the expert is under subpoena."

The COA held that Plaintiffs had no standing to contest the validity of the subpoenas to the two doctors - only the non party witnesses whose attendance was sought could. The COA concluded that the statutory requirements for awarding expert witness fees as costs were satisfied.

COA Opinions

Today the Court of Appeals released 26 opinions. More on any cases of interest later.

Wynn Confirmed to 4th Circuit

NC now has its second 4th circuit judge; read more here.

COA: Order Returning Inadvertently Disclosed Discovery Documents Does Not Affect A Substantial Right

Today the COA held that an appeal from an order returning inadvertently disclosed discovery documents that contained only conclusory unsupported opinions by a professor was interlocutory and should be dismissed. The case is Harbour Point Homeowners' Association v. DJF Enterprises.

Harbour Point Homeowners' Association sued a group of defendants who each had some role in the development or construction of the Harbour Point townhome development. The HOA alleged that there were “substantial and numerous latent defects” in the buildings.

The HOA appealed the trial court's order returning two pages of a four page memo written by a professor of wood science to Defendant Georgia-Pacific Corporation that was inadvertently provided to Plaintiff during discovery. The memo contained the professor's opinions on a building material used in the development of Harbour Point.

Although the appeal was interlocutory, the HOA argued that it should be allowed because the issue affected a substantial right. The COA held that denial or granting of a discovery motion could affect a substantial right if the information desired is highly material to a determination of the critical question to be resolved in the case. The HOA argued that the memo showed that Georgia-Pacific knew of the existence of defects in the building material prior to its installation at Harbour Point and that this made the memo material.

The COA concluded that the memo was not "highly material" because it contained only conclusory opinions and was unsupported by information concerning the professor's qualifications, the basis for his opinions, the literature he reviewed, the testing he conducted, or the results of the tests. The memo thus did not establish what Georgia-Pacific's employees, outside product testers, and experts knew about the adequacy of the building material and when they knew it, which was critical to the HOA's breach of implied warranty claim. The COA noted that while the memo may have assisted in establishing the HOA's claims for negligence and breach of implied warranty, such prior knowledge was not essential to those claims.

COA Opinions

The Court of Appeals published 26 opinions today. More on these cases later.