An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                               NO. COA12-1286
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 18 February 2014


ANNE BLANCHARD, Executrix of the
Estate of Mary Lou Barthazon,
deceased,
          Plaintiff,

      v.                                      Orange County
                                              No. 09 CVS 1109
BRITTHAVEN, INC., and HILLCO,
LTD.,
          Defendants.


      Appeal by defendants from orders entered 12 October 2011

and 8 May 2012 by Judge Shannon R. Joseph in Orange County

Superior Court.       Heard in the Court of Appeals 23 May 2013.


      Henson & Fuerst, P.A., by Anne Duvoisin; Connor & Connor,
      LLC, by Kenneth L. Connor; and Brian G. Brooks, Attorney at
      Law, PLLC, by Brian G. Brooks, for plaintiff-appellee.

      Hurley Law Office, by Michael C. Hurley and Katherine L.
      Jones, for defendants-appellants.


      GEER, Judge.


      Defendants Britthaven, Inc. and Hillco, Ltd. appeal from

the trial court's order awarding sanctions to plaintiff Anne

Blanchard, Executrix of the Estate of Mary Lou Barthazon, and

the trial court's subsequent order setting the amount of fees
                                           -2-
and costs to be awarded              as sanctions.              Defendants primarily

argue that the trial court was divested of jurisdiction over

plaintiff's      sanctions       motion     by     various      notices      of       appeal.

Defendants argue that the trial court lacked jurisdiction to

hear    the     sanctions        motion,        lacked       jurisdiction        to     order

sanctions, and lacked jurisdiction to enter an order setting the

amount of fees and expenses to be awarded as sanctions.

       After    reviewing    the    issues        encompassed        by   the     sanctions

motion and the issues involved in the other appeals, we hold

that, under N.C. Gen. Stat. § 1-294 (2013), the trial court

retained jurisdiction to conduct the proceedings and enter the

orders.        Because    defendants'       remaining          arguments        are   either

unpersuasive or not properly raised on appeal, we affirm.

                                          Facts

       On 13 July 2009, plaintiff filed a wrongful death action

against       defendants     alleging           negligence       by       defendants       in

connection      with     their    care     for     Ms.       Barthazon     at     defendant

Britthaven's nursing home in Chapel Hill, North Carolina.                                   A

more    detailed       description         of     the    facts        giving      rise     to

plaintiff's      lawsuit     is     set    forth        in    this    Court's         opinion

addressing      plaintiff's        appeal        from    the     final      judgment       in

Blanchard v. Britthaven, Inc., ___ N.C. App. ___, ___ S.E.2d
                                            -3-
___,     COA12-1366     (2013),        filed       contemporaneously         with    this

opinion.

       On 18 June 2010, defendants filed a response to plaintiff's

first    set   of    interrogatories             and   request    for     production   of

documents.          Plaintiff        had    requested,       among      other    things,

production of "[a]ll balance sheets, statements of assets and

liabilities, federal and state income tax returns, and profit

and loss statements for the Defendants for the period starting

one     year   prior    to     the     commencement         of     [Ms.    Barthazon's]

residency [at Britthaven] through the present" (the "financial

documents").        Defendants objected to production of the financial

documents and moved for a protective order prohibiting their

discovery.      On 13 July 2010, plaintiff filed a motion to compel

production of the financial documents.

       On 6 August 2010, in opposition to plaintiff's motion to

compel,    defendants        filed     an       affidavit   of    Britthaven's      Chief

Financial      Officer,      Raymond       J.    Baker.     Mr.    Baker's      affidavit

stated that the financial documents sought by plaintiff were

"highly confidential and proprietary to [defendants] and, with

the exception of provisions of such confidential information to

their    outside     legal    counsel,          accountants,      and   lenders,    these

documents are not disseminated to any persons and are kept in a

secure and confidential location."
                                     -4-
    On 21 September 2010, plaintiff filed a second motion to

compel defendants to produce the financial documents.                    On 28

December    2010,   plaintiff     served    defendants    with   notices       of

deposition for Steven Farrar, the Chief Financial Officer of

Hillco, and Mr. Baker, with each notice requesting production of

"[a]ll     Financial    Statements"        for    defendants     "and     their

subsidiaries or affiliates for the years including 2004 through

2010."

    On 3 January 2011, plaintiff filed a third motion to compel

production of the financial documents.                On 12 January 2011,

defendants    filed    an   objection      to    plaintiff's   requests    for

production in connection with the depositions of Mr. Farrar and

Mr. Baker and a motion to quash the requests.              On 3 June 2011,

the trial court entered an order granting plaintiff's motion to

compel   production    of   the   financial      documents,    subject    to   a

previously entered protective order.

    On 28 June 2011, defendants filed a notice of appeal from

the trial court's 3 June 2011 order and from an unrelated 17

June 2011 discovery order.        On 29 June 2011, defendants filed an

amended notice of appeal, again appealing the 3 and 17 June 2011

discovery orders.      On 6 July 2011, plaintiff filed a motion to

disregard defendants' notice of appeal.
                                  -5-
    The transcript of    a 6 July 2011 hearing on plaintiff's

motion to disregard defendants' notice of appeal indicates that

defendants had withheld production of the financial documents,

as well as items at issue in the 17 June 2011 discovery order.

Defendants confirmed at the hearing that they did not oppose

plaintiff's motion to the extent that it "ask[ed] . . . that the

Court retain jurisdiction and . . . ignore the notice of appeal

and proceed with the case as if no appeal had been taken."

    The trial court informed plaintiff that she had a choice:

she could push back the trial date pending defendants' appeal --

giving her a chance to receive prior to trial the documents

ordered produced in the appealed orders -- or she could proceed

to trial on the set date without the discovery at issue.           On 1

September 2011, the court entered an order granting plaintiff's

motion to disregard defendants' appeal.     The order provided that

the motion was granted because "neither party sought a global

stay of the case pending interlocutory appeal," and "Plaintiff

elected to proceed to trial notwithstanding the appeal."

    On 22 July 2011, plaintiff filed a motion for sanctions

pursuant to Rules 26 and 37 of the Rules of Civil Procedure,

"the Court's inherent authority," and Chapter 5A of the General

Statutes.   Plaintiff   alleged   that   statements   in   Mr.   Baker's

affidavit concerning the financial documents were inaccurate or
                                        -6-
misleading since plaintiff had recently learned that defendants'

audited    financial    documents       were   filed     annually      pursuant   to

Virginia regulations and were generally available as Virginia

public records.        Plaintiff asserted that her expert, certified

public accountant Brad Rush, had obtained defendants' audited

consolidated financial statements for the years 2006 to 2010

through a Virginia public records request made on 24 June 2011.

Plaintiff    also    contended    that    statements      in    an   affidavit    by

defendants' in-house counsel, Erik Lindberg, were inaccurate or

misleading    regarding       electronic        information       maintained      by

defendants,       referred   to   as    "Kronos"    information.           Finally,

plaintiffs argued that defendants improperly withheld discovery

by    producing    "data-less     budgets"     until     the    court    re-ordered

production and complete budgets were produced.                   At a 16 August

2011    pretrial     hearing,     the     court    stated       it      would   take

plaintiff's motion for sanctions under advisement.

       On 23 September 2011, the jury returned a verdict in favor

of defendants.       The court entered a final judgment on 12 October

2011, which provided that the court retained jurisdiction "for

the    determination    of   taxable     costs,    and    for    the    appropriate

sanctions against Defendants."                Also on 12 October 2011, the

court entered an order granting plaintiff's motion for sanctions

pursuant to Rule 37 and the court's inherent authority.
                                              -7-
       In the sanctions order, the court found that defendants

knew or should have known after reasonable inquiry and diligence

that    the    statement          in     Mr.      Baker's       affidavit        concerning

dissemination        of    the     financial        documents       was    not     correct.

Further, the misstatement related to a material issue: whether

the documents were confidential and proprietary and should not

be ordered produced.             This finding was based in part on the fact

that financial documents were filed with the Virginia agency,

and    the    affidavit      made        no    mention         of   filings      with   any

governmental authorities.               The finding was further based on the

fact that there was no credible evidence that any reasonable

inquiry or due diligence was made before Mr. Baker's affidavit

was    presented      to    the     trial      court      or    during     the    multiple

discovery     motions       and        hearings     relating        to    the    financial

documents.

       The court further found sanctions were proper based on the

statements     Mr.    Lindberg         made    in   his   affidavit       regarding     the

availability of the "Kronos" information for discovery.                                 The

court found the relevant statements were not false, but "at a

minimum evince a materially incomplete inquiry into whether and

how the Kronos information could be obtained; or an incomplete

and somewhat misleading explanation of the situation."
                                        -8-
     Finally, the court found sanctions were appropriate based

on defendants' production, in response to an order compelling

production, of a disc containing budget information that did not

show values in many fields where there should have been values.

At   a    hearing    on    the   adequacy      of   the    budget      information,

defendants       initially    did     not   have    an    explanation     for   the

problem, despite being on notice of the issue.                   Defendants then

produced the complete budget information after intervention and

inquiry by the trial court.             The court observed that discovery

mistakes should be remedied once brought to the attention of

counsel    and    before     court    intervention        and   that    defendants'

conduct regarding the budgets showed a failure to reasonably and

adequately respond to plaintiff's discovery requests.

     Based on its findings, the court ordered defendants to pay

the expenses, costs, and reasonable attorney's fees incurred by

plaintiff (1) to pursue production of the financial documents

ultimately obtained by the Virginia public records search, (2)

to   compel      production      of   the     Kronos     information     that   was

ultimately produced, (3) to compel and obtain production of the

budgets, and (4) to prepare for and pursue plaintiff's 22 July

2011 motion for sanctions.             The trial court's 12 October 2011

order left for later determination the precise amount of fees

and expenses to be paid.
                                              -9-
      On 14 October 2011, defendants filed a notice of appeal

from the sanctions order.                On or about 13 January 2012, after

the   trial     court      denied   plaintiff's            motion    for    a    new    trial,

plaintiff filed notice of appeal from the final judgment.

      On 8 May 2012, the trial court entered an order addressing

the sanctions amount to be paid.                           The court found that the

proposed hourly rate of $475.00 for plaintiff's counsel, Anne

Duvoisin,       was     supported        by    Ms.    Duvoisin's           affidavits       and

supporting affidavits and accepted that rate as reasonable.                                 The

court found, however, that the proposed hourly rate of $475.00

for Camille Godwin, one of plaintiff's other attorneys, was not

sufficiently supported by Ms. Godwin's affidavit.                                    The trial

court    noted     that     Ms.   Godwin      appeared        to    serve    in      the   same

capacity      as   defendants'      associate         counsel       who,     according       to

defendants'        submissions      related          to     the     award       of    monetary

sanctions, charged an hourly rate of $150.00.                                Based on Ms.

Godwin's       role   as    associate         counsel,       the    court       applied     the

$150.00 hourly rate for Ms. Godwin's time.                          Totaling attorney's

fees, expenses, and costs, the court ordered defendants to pay

the sum of $29,242.31.                  Defendants timely appealed the order

setting the award of fees and costs for sanctions.

      On 13 July 2012, plaintiff filed a motion to dismiss the

appeal    in    COA12-664,        the    June       2011    appeal    from       the    orders
                                       -10-
compelling production.           On 20 November 2012, this Court entered

an    order     allowing    plaintiff's        motion      to    dismiss     defendants'

appeal in COA12-664:             "The motion filed in this cause on the

13th of July 2012 and designated 'Motion to Dismiss Appeal' is

allowed.        Appellants' appeal from the two discovery orders is

now     moot.    Appellants'      appeal       from     the      sanctions    order    is

interlocutory, and the issues raised therein can be argued in

appellants'        subsequent      appeal,          COA12-1286,       which     is    now

pending."       We now address defendants' appeal in COA12-1286.

                                           I

       Defendants first contend that, under N.C. Gen. Stat. § 1-

294,    their     appeal    in   COA12-664      from       the   3   June    2011    order

compelling production of the financial documents divested the

trial     court     of     jurisdiction        over     plaintiff's         motion    for

sanctions.        N.C. Gen. Stat. § 1-294 provides in relevant part:

"When an appeal is perfected as provided by this Article it

stays    all     further    proceedings        in    the    court    below     upon   the

judgment appealed from, or upon the matter embraced therein; but

the court below may proceed upon any other matter included in

the action and not affected by the judgment appealed from."

       Pursuant to N.C. Gen. Stat. § 1-294, "[w]hen a party gives

notice of appeal from an appealable order, the trial court is

divested of jurisdiction and the related proceedings are stayed
                                        -11-
in the lower court."           Dalenko v. Peden Gen. Contractors, Inc.,

197    N.C.   App.    115,    121-22,   676    S.E.2d      625,        630       (2009)    (per

curiam).      However, when a litigant appeals from a non-appealable

interlocutory        order,    "a   trial    court    is     not       divested       of    its

jurisdiction to determine a case on its merits" and "is not

required to stay the proceedings."                   Id. at 122, 676 S.E.2d at

630.     In the latter case, the court "'may disregard the appeal

and proceed to try the action[.]'"                  Id. (quoting Velez v. Dick

Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 591, 551

S.E.2d 873, 875 (2001)).

       There is no dispute in this case that defendants' appeal

from the order compelling production of the financial records

was    interlocutory.           However,      defendants             contend       that    the

interlocutory         order     affected      a      substantial             right,        and,

therefore, the order was properly appealable.                                See Romig v.

Jefferson-Pilot       Life     Ins.   Co.,    132    N.C.     App.         682,    685,     513

S.E.2d     598,    600   (1999)       ("A    party     may       .     .     .    appeal     an

interlocutory order 'if it affects a substantial right and will

work injury to the appellant[] if not corrected before final

judgment.'" (quoting Perry v. Cullipher, 69 N.C. App. 761, 762,

318    S.E.2d     354,   356    (1984))),      aff'd       per       curiam,       351     N.C.

349, 524 S.E.2d 804 (2000).
                                           -12-
        Defendants assert that the order affected a substantial

right     since       the      financial        documents        were      confidential,

proprietary documents and, if defendants had complied with the

order compelling production, "the damage from th[at] disclosure

could not be undone."             Defendants further assert that the order

affected    a    substantial       right       because       some   of     the      financial

documents       --   tax      returns     --    were     subject      to       a    qualified

privilege arising from a reasonable expectation of privacy.

    Assuming,           without    deciding,          that    the    order         compelling

production      of   the      financial    documents         affected      a       substantial

right and was properly appealable, defendants must still show

that plaintiff's motion for sanctions and the trial court's 12

October    2011      sanctions     order       were    matters      "embraced"         in   the

appeal from the order compelling production of the financial

documents.       See N.C. Gen. Stat. § 1-294.

    Defendants argue that the order compelling production of

the financial documents involved "the competency of" Mr. Baker's

affidavit       filed    by    defendants       in     opposition        to        plaintiff's

motion to compel.              Defendants then contend that because the

sanctions       order       imposed     sanctions        based      in     part        on   an

"inaccurate and misleading" statement in Mr. Baker's affidavit,

the sanctions order involved a matter embraced by the order

compelling production.            We disagree.
                                          -13-
       The    issues     embraced    by     defendants'       interlocutory        appeal

from the order compelling production of the financial documents

included, according to defendants' counsel at a pretrial hearing

following      the     appeal   of    the      production     order,    whether      the

financial documents were privileged or otherwise discoverable,

whether      plaintiff's     ability      to    obtain    the    documents      from   a

Virginia public records search impacted their discoverability,

and    whether       Judge   Joseph       improperly      overruled      an    earlier

discovery order by Judge Marvin K. Blount regarding production

of    the    financial    documents.           By   contrast,    in    the    sanctions

order, the trial court did not, in any way, address the nature

of the financial records or whether they should be produced, but

rather the order addressed the propriety of representations made

to the trial court in filings with the court -- a matter not at

issue in COA12-664.          Under the specific facts of this case, the

matters at issue in the sanctions motion were not embraced in

the appeal, and, as a result, N.C. Gen. Stat. § 1-294 did not

stay proceedings on the sanctions motion.

       We also note that defendants' arguments in their brief and

at oral argument touch upon the merits of the order compelling

production of the financial documents.                   Defendants' appeal from

that   order     has,    however,     previously       been     dismissed     as   moot.

Further,      with   respect    to    the    financial      documents,       defendants
                                            -14-
were    sanctioned      for     filing        an     inaccurate     and      misleading

affidavit without reasonably determining whether the affidavit's

statements     were     true.         Defendants      were    not     sanctioned          for

failing to comply with the order compelling production of the

financial     documents.        Consequently,         the    merits    of    the     order

compelling     production       of     the     financial      documents        are       not

presently before this Court.

       Defendants next argue that their appeal from the 12 October

2011    sanctions     order     and    plaintiff's       appeal     from     the     final

judgment each divested the trial court of jurisdiction over the

remaining issue of the amount of fees and costs to be awarded as

sanctions.      With     respect       to    defendants'     appeal     from       the    12

October 2011 sanctions order, this Court has already issued an

order, in COA12-664, determining that defendants' appeal from

the sanctions order was interlocutory and dismissing the appeal

from that order.

       This Court's prior determination that the sanctions order

was not appealable is binding here.                    In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the

Court    of   Appeals    has     decided       the    same issue,       albeit       in    a

different case, a subsequent panel of the same court is bound by

that    precedent,     unless     it    has    been     overturned      by    a    higher

court.").      Since defendant's appeal was from a non-appealable
                                        -15-
interlocutory order, that appeal did not divest the trial court

of jurisdiction to receive evidence pertaining to the amount of

sanctions and to enter the order awarding fees and costs.                           See

Dalenko, 197 N.C. App. at 122, 676 S.E.2d at 630.

       With respect to plaintiff's appeal from the final judgment,

it well established that the exception in N.C. Gen. Stat. § 1-

294 for continued jurisdiction over matters not affected by the

appealed      judgment    allows      the   court    to    continue   to     exercise

jurisdiction over motions for sanctions as long as the matter

does    not   depend     upon   the   validity      of    the   appealed    order   or

judgment.      See Overcash v. Blue Cross & Blue Shield of N.C., 94

N.C. App. 602, 617, 618, 381 S.E.2d 330, 340 (1989) (holding

"termination of the action and defendant's filing of notice of

appeal did not automatically deprive the court of jurisdiction"

over defendant's post-trial motion for sanctions, but "[s]ince

the substantive basis of defendant's motion had been adjudicated

in the earlier order, defendant's appeal therefrom divested the

trial    court   of    its   jurisdiction      to    entertain     the     post-trial

motion").      Cf. McClure v. Cnty. of Jackson, 185 N.C. App. 462,

471, 648 S.E.2d 546, 551 (2007) ("When, as in the instant case,

the award of attorney's fees was based upon the plaintiff being

the 'prevailing party' in the proceedings, the exception set

forth in N.C. Gen. Stat. § 1–294 is not applicable.").                          Since
                                           -16-
plaintiff's     motion       for     sanctions      did      not    depend       upon     the

validity of the final judgment, the exception to N.C. Gen. Stat.

§ 1–294 is applicable here.

       Defendants nonetheless cite McClure and Swink v. Weintraub,

195 N.C. App. 133, 672 S.E.2d 53 (2009), in support of their

argument.     In both of those cases, however, this Court concluded

that the trial court lacked jurisdiction to impose an award of

attorneys' fees following appeal from a judgment because the fee

award was entered as a result of a party prevailing on the

merits, a circumstance not present here.                     See McClure, 185 N.C.

App. at 471, 648 S.E.2d at 551 (holding "exception set forth in

N.C.   Gen.   Stat.    §     1–294    is   not    applicable"        since       "award    of

attorney's      fees    was     based      upon     the      plaintiff       being        the

'prevailing party' in the proceedings"); Swink, 195 N.C. App. at

160, 672 S.E.2d at 70 (holding trial court lacked jurisdiction

under N.C. Gen. Stat. § 1-294 to enter order taxing costs after

appeal   from    judgment       since      "award       of   costs       [was]    directly

dependent upon whether the judgment [was] sustained on appeal").

       In sum, none of the prior notices of appeal stayed the

proceedings      on    the     sanctions         matter.           The    trial     court,

therefore,      properly       exercised          its     jurisdiction           over     the

sanctions matter throughout this case.

                                            II
                                          -17-
       Defendants      next    argue     that    the     trial       court       abused    its

discretion in ordering defendants sanctioned.                             "[T]rial courts

have inherent authority to impose sanctions for wilful failure

to comply with the rules of court."                      Few v. Hammack Enters.,

Inc., 132 N.C. App. 291, 298, 511 S.E.2d 665, 670 (1999).                                 The

exercise of a court's inherent authority is reviewed for abuse

of discretion.        Dunn v. Canoy, 180 N.C. App. 30, 45, 636 S.E.2d

243,    253    (2006).        Similarly,    "[t]he       imposition          of   sanctions

under Rule 37 'is in the sound discretion of the trial judge and

cannot    be     overturned      absent     a        showing       of     abuse    of     that

discretion.'"         In re Pedestrian Walkway Failure, 173 N.C. App.

237,    246,    618   S.E.2d     819,    826     (2005)       (quoting      Bumgarner       v.

Reneau, 332 N.C. 624, 631, 422 S.E.2d 686, 690 (1992)).

       Defendants first argue that "the trial court's finding that

Baker [CFO of Britthaven], Farrar [CFO of Hillco], and Lindberg

[defendants' in house counsel] wrongfully failed to appear at

the    Sanctions      hearing    is     contradicted          by    the    record"      since

"[t]he trial court refused Plaintiff's request to summon these

witnesses to the hearing and granted Defendants' motion to the

[sic]    quash     subpoenas      issued        to     them        for    that    purpose."

(Internal record citations omitted.)                      Contrary to defendants'

contention, however, the trial court never found that Mr. Baker,
                                         -18-
Mr. Farrar, and Mr. Lindberg "wrongfully failed to appear at the

Sanctions hearing."          (Emphasis omitted.)

       In    the    trial   court's    explanation      of   why   sanctions   were

appropriate for the factually incorrect statement in Mr. Baker's

affidavit about dissemination of the financial documents, the

court       found    that    defendants     never      produced    evidence    that

reasonable inquiries had been made to ensure the affidavit was

accurate.       In noting the absence of evidence, the court pointed

out that defendants had moved to quash the subpoenas issued to

Mr. Baker and Mr. Lindberg compelling their testimony at the

sanctions hearing.

       The trial court further found that rather than bringing Mr.

Baker and Mr. Lindberg to court, defense counsel represented

that    neither      of     those    individuals    knew     how   the   financial

documents had been filed in Virginia and, only after several

calls, was defense counsel able to represent to the trial court

that the documents had purportedly been filed by an outside

accounting firm.            The trial court's order for sanctions was,

therefore, based on the "submission of misleading and inaccurate

affidavit      statements,"         resulting   from    defendants'      inadequate

inquiry prior to making the statements.                  Defendants' failure to

produce witnesses at the sanctions hearing and their rationale

for the motion to quash the subpoenas were pertinent to whether
                                           -19-
defendants     had     any    justification         for    the    statements       in   the

affidavits.

       Defendants      also    contend      that    "the    finding        that   Raymond

Baker's      statements       in    his     affidavit       were        'inaccurate     and

misleading' is not supported by the bare fact that Plaintiff's

expert succeeded in obtaining financial statements from a state

agency."      (Internal record citation omitted.)                   In relevant part,

the court found that Mr. Baker's affidavit contained a factual

inaccuracy regarding dissemination of the financial documents

since it omitted the fact that the financial statements were

filed with government agencies or produced in other litigation.

       The    court's     actual      finding       was    supported        by    exhibits

attached to plaintiff's motion for sanctions and admissions by

defense counsel at the hearing.                   Given the evidence, we cannot

conclude that the trial court abused its discretion in finding

both   that    Mr.    Baker's      affidavit       contained       an    inaccurate     and

misleading statement and that defendants had not shown they made

a   reasonable    inquiry      into       whether    Mr.    Baker's       statement     was

correct prior to filing his affidavit.

       Defendants      next    argue      that    the     trial    court     abused     its

discretion in sanctioning defendants based on the content of Mr.

Lindberg's       affidavit         regarding        discovery       of      the     Kronos

information.         Defendants specifically dispute the trial court's
                                                -20-
finding that even though the "statements were not false on their

face,"      those     statements          "at    a     minimum       evince      a    materially

incomplete inquiry into whether and how the Kronos information

could    be       obtained;   or     an    incomplete          and    somewhat        misleading

explanation of the situation."                       Defendants do not challenge any

of    the    order's      other      findings         that     supported      this      ultimate

finding.          The court's detailed supporting findings explain that

Mr. Lindberg made the misleading statements in his affidavit

about the accessibility of the Kronos information based upon

only limited communications with a Britthaven employee.                                     He did

not fully explore with that employee the possible ways in which

the   information         could    have     been       obtained.           The       unchallenged

supporting         findings    fully       support       the       trial   court's       ultimate

finding.

       Defendants         nonetheless           assert       that     "the    statements        in

Lindberg's Affidavit, executed 28 February 2010, were made based

on his knowledge, information, and belief of the Kronos computer

system at that time."              Defendants further argue that "an affiant

is required to have only personal knowledge, information, or a

reasonable belief of the facts stated in the affidavit" and "is

not     required         to   have     complete          or        infallible        knowledge."

However,      defendants'         arguments          fail     to    recognize         the   actual

basis       for    the    trial      court's         concern        regarding        defendants'
                                      -21-
conduct in discovery.        As with Mr. Baker's statements regarding

the financial documents, Mr. Lindberg also made statements that

demonstrated that he had made "a materially incomplete inquiry"

into the matter or was providing "an incomplete and somewhat

misleading explanation of the situation."                 Thus, the court did

not   sanction       defendants     for   failing    to     have   "infallible

knowledge," but rather for failing to adequately look into the

matter prior to filing an affidavit making representations to

the trial court.

      Finally, defendants argue that the trial court abused its

discretion      in   sanctioning     defendants     for    their   failure     to

produce   the    full   budget     information    prior    to   repeated    court

intervention.        Defendants challenge the trial court's finding

that "[a]t the hearing, Defendants did not initially have any

explanation for the [budget] problem, despite being on notice of

the issue, and obtained the information and produced the correct

information only after yet another intervention and inquiry by

the Court."      Defendants argue that this finding does not present

"an accurate reflection of what actually occurred during that

hearing."

      At a 26 May 2011 hearing, plaintiff's counsel explained to

the court that the budgets she received from defendants were

missing     information.          Plaintiff's    counsel     stated   she    had
                                        -22-
notified defendants of the problem.              Upon the trial court asking

why defendants had not cured the problem prior to the hearing

and why plaintiff had to raise the issue with the court, defense

counsel responded that he had "no excuse for that."                       Defense

counsel then stated he could have an explanation for the problem

shortly.

       At a continuation of the hearing the next day, 27 May 2011,

defense counsel explained that the issue leading to incomplete

information in the budgets as produced resulted from the need

for a certain macro on a computer system for the documents, and

defendants'     prior    counsel      had   printed    the   documents    from    a

computer      without     the    necessary       macro,      leaving     out     the

information that would otherwise have been present.                       Defense

counsel further indicated that he had corrected the problem and

would produce the complete budget information by the end of the

day.    Thus, the court's finding accurately reflects the events

at the hearings.

       Also with respect to the budgets, defendants argue that the

trial court abused its discretion in stating at the 27 May 2011

hearing that it believed "the error with the budgets was due to

a   failure   of    Plaintiff's       counsel   and   Defendants'      counsel   to

communicate"       and   that   the    issue    had   been   "'resolved,'"       but
                                     -23-
later, in the sanctions order, "revers[ing]" itself and ordering

sanctions based on this issue.           We disagree.

      At the hearing, the court actually stated: "It sounds like

it's resolved; seems like it took an awfully long time to get

here; still have concerns about that; realize it may not be

entirely present counsel's fault. . . .                [I]t just seems to me

to be a failure to communicate among counsel.                     And that's a

problem.      So that's a problem."          The court's statement about

"present counsel" refers to assertions by defense counsel that

defendants' former attorney had mistakenly produced the budgets

containing the missing data.          In response to defense counsel's

assertions that the issue may have received little attention

since discovery of the budgets was not strongly contested by the

parties, the court responded, "Then how did it get to me? . . .

It's been pending for so long."

      Thus,   the   court   did    not     "reverse"     itself    by     ordering

sanctions pursuant to a matter that it had previously determined

to   be   completely   resolved.      Rather,     the    court    noted     at   the

hearing that it believed the issue was attributable to a failure

of counsel, including defense counsel, to communicate and that

it was very concerned that defendants had failed to correct the

issue,    despite   being   on    notice    of   it,    before    further    court

intervention was necessary.
                                            -24-
    Each of the findings of fact challenged by defendants are

supported by evidence or other unchallenged findings.                                  Given

those findings, defendants have not shown that the trial court

abused   its        discretion      in    deciding    that       defendants      should   be

sanctioned.

                                             III

    Defendants next argue that the trial court's entry of the

sanctions order violated their constitutional rights in a number

of ways.       Defendants first argue that the trial court violated

their    due        process   rights       by     sanctioning          them    for   matters

embraced       by    their    pending       appeal        of     the    order    compelling

production of the financial documents despite the trial court's

acknowledgement         at    the    6    July     2011    hearing       that    the   order

compelling production            was automatically stayed pending appeal

pursuant to N.C. Gen. Stat. § 1-294.

    Initially, we note that defendants cite no authority in

support of this argument, thereby violating Rule 28(b)(6) of the

Rules of Appellate Procedure.                     In any event, we have already

held that the court's sanctions order did not pertain to matters

"embraced"          within    the        appeal    from         the    order     compelling

production of the financial documents.                         N.C. Gen. Stat. § 1-294.

Even if defendants' due process rights could be implicated by a
                                           -25-
violation of the stay set out in N.C. Gen. Stat. § 1-294, no

violation occurred in this case.

      Defendants next contend that the sanctions order violated

their due process rights given "the inordinate and unexplained

delay     in       the    issuance    of    the    order      awarding       sanctions."

Defendants assert that the timing of the order demonstrates that

the trial court used the sanctions order "as a consolation prize

for a plaintiff disappointed by the jury's verdict."                          Defendants

again cite no authority in support of their contention, and we

decline       to    address      a   claimed    constitutional         violation    when

defendants have not considered the argument important enough to

warrant even minimal research.

      Defendants further argue that the trial court's entry of

the   sanctions          order   violated      their    constitutional        rights   on

three     additional        grounds     related        to   (1)     defendants'    claim

(already       found      unsupported)     that   the       trial    court   sanctioned

defendants for failing to produce witnesses at the sanctions

hearing; (2) the trial court's "refus[ing] to hear Mr. Baker's

offer of proof" at the trial following the sanctions hearing;

and     (3)        the     trial      court's     violation          of   "Defendants'

constitutional right to due process and equal protection of the

law by making findings based on matters outside the record of

which Defendants had been given no notice or an opportunity to
                                          -26-
be heard, including hearsay related to motions filed in the

Hopper case and Defendant's [sic] alleged failure to comply with

orders by other judges."

      Defendants        did   not   make    any    of   these      three    additional

constitutional      arguments        to     the    trial     court.          Moreover,

defendants cite no authority in support of the second and third

additional      constitutional        arguments,        in    violation      of   Rule

28(b)(6) of the Rules of Appellate Procedure.

      "A constitutional issue not raised at trial will generally

not be considered for the first time on appeal."                           Anderson v.

Assimos, 356 N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (per

curiam).       See N.C.R. App. P. 10(a)(1) (providing that, in order

to preserve argument for appeal, party must present to trial

court     "a   timely    request,    objection,         or   motion,   stating     the

specific grounds for the ruling the party desired the court to

make").        Since defendants did not raise these constitutional

issues below, they cannot now argue them on appeal.1

      Finally, although not set out in their brief, defendants

raised an additional due process issue at oral argument before

this Court, asserting that the trial court's failure to enter

the     sanctions   order      until       after   entry      of    final     judgment

      1
      We note, in passing, however, that defendants' articulation
of what the trial court did is not necessarily consistent with
what appears in the actual record.
                                    -27-
necessarily precluded the trial court from considering lesser

sanctions that would otherwise have been available.                   Since this

argument was not raised in defendants' brief, defendants cannot

properly raise it for the first time at oral argument.                  See Atl.

Coast Line R.R. Co. v. Beaufort Cnty., 224 N.C. 115, 119, 29

S.E.2d 201, 203 (1944) ("No such contention appears to have been

made in court below, and none is made in [sic] brief filed in

this Court.    Hence, oral presentation of it comes too late, and

the point may not now be raised in this Court.").

      Moreover, the argument was not made in the trial court.

Defendants    claim   they   did   not   have    the    chance   to    make   this

argument to the trial court since the court held no additional

hearing on the sanctions matter after trial began and did not

give defendants notice prior to entering the sanctions order.

However, defendants filed an objection to the sanctions order,

after entry of the sanctions order and prior to entry of the

order setting the award of fees and costs for sanctions, arguing

to the trial court that entry of the sanctions order violated

their due process rights in a number of other ways.                   Defendants'

own filing, therefore, belies their argument that they had no

opportunity to present this issue to the trial court.                     Because

the   issue   was     neither   preserved       at     the   trial    level   nor
                                         -28-
appropriately argued on appeal, it is not properly before this

Court.

                                          IV

    Defendants' final argument is that "the trial court abused

its discretion when it set the hourly rate of compensation for

the legal services of Plaintiff's counsel, Anne Duvoisin, at

$475 per hour."        Defendants assert that Ms. Duvoisin functioned

primarily in a second-chair capacity during trial and that since

defendants'     lead     counsel's         hourly        rate      is     $175.00     and

defendants' associate counsel's hourly rate is $150.00, there

was no reasonable basis for the court's finding.

    We     initially     note     that    defendants           presented      no   actual

evidence in the trial court of defendants' lead counsel's or

associate counsel's hourly rates.               Our review of the record has

revealed    only     that,   in    an    unverified           responsive     filing   by

defendants    entitled       "defendants'       objection          and    response     to

plaintiff's     affidavits        in     support        of     monetary      sanctions,"

defendants    made     representations          regarding          defense    counsel's

hourly rates.        However, the assertions in this filing were not

evidence, and defendants did not attach any affidavits or other

evidence concerning these hourly rates.

    The      trial    court's      findings        on        the   reasonableness     of

attorney's fees must be supported by some evidence.                          Simpson v.
                                        -29-
Simpson, 209 N.C. App. 320, 325, 703 S.E.2d 890, 893 (2011).                         To

that    end,    the       court   may    take      judicial     notice     of    the

reasonableness of fees unless it "determines that it lacks the

necessary knowledge or that the customary hourly rate is in fact

subject to debate in the community."               Id. at 328, 703 S.E.2d at

895.

       Here,   the    trial   court     observed    the   trial   and    was    in   a

position to determine Ms. Duvoisin's role at trial.                      Defendants

cite   no   authority      supporting     their    contentions    regarding      the

hourly rates awarded and, therefore, have cited nothing that

suggests that Ms. Duvoisin's hourly rate should be set at the

level of a lesser experienced associate.                    Further, defendants

neither offered evidence of the hourly rates that they argue on

appeal would have been appropriate nor did they request that the

trial court take judicial notice of those hourly rates.                         There

is,    however,      no   dispute     that     affidavits     submitted    by    Ms.

Duvoisin -- the only evidence before the court on this issue --

supported the hourly rate set by the court.

       Defendants also argue that the court abused its discretion

in setting Ms. Duvoisin's hourly rate in light of the court's

findings regarding the hourly rate of another one of plaintiff's

attorneys, Ms. Godwin.            The court rejected the hourly rate of

$475.00 proposed in Ms. Godwin's affidavit, finding that "the
                                -30-
Court does not have sufficient information to determine whether

the rate of $475.00 is the customary fee for like work and the

experience and ability of Ms. Godwin."2       The court further found

that Ms. Godwin "appeared to function in the same role as did

associate counsel for the defense who, according to Defendants'

Objections and Response to Plaintiff's Affidavits, charges an

hourly rate of $150.00."      The court, "[b]ased on that role,"

applied a $150.00 hourly rate for Ms. Godwin's time.

    Defendants   do   not   challenge   Ms.   Godwin's   fee,   and   her

affidavit provides no evidence that the hourly rate set for Ms.

Duvoisin was unreasonable.     We, therefore, hold that the trial

court did not abuse its discretion in setting Ms. Duvoisin's

hourly rate, and we affirm the trial court's order.


    Affirmed.

    Judges ELMORE and DILLON concur.

    Report per Rule 30(e).




    2
      We note that Ms. Godwin's affidavit was significantly
shorter than Ms. Duvoisin's affidavit and, unlike Ms. Duvoisin's
affidavit, was not supported by additional affidavits by other
attorneys.
