                             NO. COA13-884
                             NO. COA13-885
                    NORTH CAROLINA COURT OF APPEALS

                         Filed: 1 April 2014


THE ROYAL OAK CONCERNED CITIZENS
ASSOCIATION, MARK HARDY, CURTIS
MCMILLIAN and DENNIS MCMILLIAN,
     Plaintiffs,

    v.                               Brunswick County
                                     Nos. 11 CVS 1301; 12 CVS 1138
BRUNSWICK COUNTY,
     Defendant.


THE ROYAL OAK CONCERNED CITIZENS
ASSOCIATION, JAMES HARDY, CURTIS
MCMILLIAN and DENNIS MCMILLIAN,
     Plaintiffs,

    v.

BRUNSWICK COUNTY,
     Defendant.


    Appeals by defendant from orders entered 5 March and 6 May

2013 by Judge Mary Ann Tally in Brunswick County Superior Court.

Heard in the Court of Appeals 9 January 2014.


    UNC Center for Civil Rights, by Elizabeth Haddix and Bethan
    Eynon, Higgins & Owens, PLLC, by Raymond E. Owens, Jr., and
    Fair Housing Project, Legal Aid of North Carolina, by Jack
    Holtzman, for plaintiffs-appellees.

    Womble Carlyle Sandridge & Rice, LLP, by Julie B. Bradburn,
    Jacqueline Terry Hughes, and Kristen Y. Riggs, for
    defendant-appellant.


    HUNTER, JR., Robert N., Judge.
                                          -2-



       Brunswick County (“Defendant”) appeals from interlocutory

orders compelling former Brunswick County Manager Marty Lawing

(“Mr. Lawing”) to appear for deposition.                     Defendant contends

that   because     the   orders    do    not    indicate   that     Mr.    Lawing    is

entitled to assert legislative and/or quasi-judicial immunity,

he   has    been   denied    a    substantial      right    that     warrants       our

immediate review.         For the following reasons, we disagree and

dismiss Defendant’s appeals.

                    I.      Factual & Procedural History

       On   3    June    2011,     The     Royal    Oak     Concerned       Citizens

Association,        Curtis        McMillian,        and      Dennis        McMillian

(collectively,      “Plaintiffs”)         began    this    action    by    filing     a

complaint in Brunswick County Superior Court.1                            Plaintiffs’

complaint was amended multiple times.               Plaintiffs’ third amended

complaint,      operative    here,       alleges   violations       of    the   North

Carolina Fair Housing Act, the Equal Protection Clause under

Article I, Section 19 of the North Carolina Constitution, and

N.C. Gen. Stat. § 153A-136(c).             These causes of action stem from



1
  The case number assigned to this action was Brunswick County
No. 11 CVS 1301.      Plaintiff Mark Hardy originally filed a
separate action, Brunswick County No. 12 CVS 1138, which was
consolidated by the trial court with 11 CVS 1301.    Hereafter,
use of the moniker “Plaintiffs” includes Mark Hardy.
                                        -3-
an    alleged   pattern     and    practice    of    racial    discrimination           by

Defendant,      culminating        in   Defendant’s      decision           to    rezone

property in Plaintiffs’ community to accommodate the expansion

of an existing landfill.           The complaint also seeks a declaration

that Defendant’s rezoning of the property was unlawful, invalid,

and void.

       During discovery, Plaintiffs noticed the depositions of Mr.

Lawing    and   former    Brunswick        County    Commissioner         William   Sue

(“Mr.    Sue”).       Following     Defendant’s       refusal       to    produce   Mr.

Lawing and Mr. Sue, Plaintiffs filed a motion to compel their

depositions.       Defendant       responded    by    filing    a        motion   for    a

protective order prohibiting the depositions on the grounds that

Mr.    Lawing   and   Mr.    Sue    have    legislative       and    quasi-judicial

immunity.       Following a hearing on the matter, the trial court

filed a written order dated 5 March 2013 allowing Plaintiffs’

motion to compel.        The order, in part, stated:

            The Court will compel Mr. Sue and Mr. Lawing
            to appear for depositions at a time that is
            mutually convenient for the parties and the
            attorneys   but   will  set   the  following
            conditions upon the deposition of former
            County Commissioner William Sue:

                   a. William Sue is entitled to assert a
                      testimonial privilege.

                   b. The Plaintiffs are prohibited from
                      inquiring as to Mr. Sue’s intentions,
                                 -4-
                   motives, or thought processes with
                   respect to any quasi-judicial or
                   legislative matters clearly defined
                   by North Carolina law as such.

The order contained no conditions with respect to Mr. Lawing’s

deposition.    On 4 April 2013, Defendant filed notice of appeal

from the order.2

     Following Defendant’s notice of appeal,        Plaintiffs again

noticed the deposition of Mr. Lawing and filed another motion to

compel Mr. Lawing’s deposition.        By written order dated 6 May

2013, the trial court concluded that:

            1. The March 5, 2013 order does not affect a
               substantial right of Defendant’s that
               would injure Defendant if not corrected
               before appeal from final judgment, and
               thus   the  order    is a   non-appealable
               interlocutory order.

            2. Therefore, a stay of this Court’s March 5,
               2013 order is not warranted and the trial
               court retains jurisdiction of this issue.

            3. Defendant is again compelled    to   produce
               County Manager Marty Lawing.

On 30 May 2013, Defendant filed notice of appeal from this order

as well.3

     Following Defendant’s second notice of appeal, Defendant



2
  Defendant’s appeal from the 5 March 2013 order is the subject
of COA13-885.
3
  Defendant’s appeal from the 6 May 2013 order is the subject of
COA13-884.
                                             -5-
filed a petition for writ of supersedeas and a motion for a

temporary stay with this Court on 31 May 2013.                        By order entered

3 June 2013, we allowed the motion for a temporary stay.                                By

order entered 18 June 2013, we allowed the petition for writ of

supersedeas and stayed the 5 March and 6 May orders of the trial

court pending the outcome of Defendant’s appeals.

                                  II.    Jurisdiction

       At the outset, we must determine whether this Court has

jurisdiction        to     hear        Defendant’s           interlocutory      appeals.

Defendant contends that “[t]he trial court rejected out of hand

that [Mr.] Lawing was entitled to assert any form of immunity,

and testimonial privilege, at his deposition[,]” and that such

denial   is   immediately         appealable       as    affecting      a    substantial

right.     For   the      following      reasons,        we    hold   that    the    trial

court’s 5 March and 6 May 2013 orders do not preclude Defendant

from making good-faith objections to privileged information at

Mr. Lawing’s deposition.              Consequently, no substantial right has

been     affected        and     we     dismiss         Defendant’s         appeals     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).                                 “An
                                       -6-
interlocutory   order     is   one    made    during       the    pendency   of   an

action, which does not dispose of the case, but leaves it for

further   action    by   the   trial    court    in       order    to   settle    and

determine the entire controversy.”              Veazey v. City of Durham,

231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).                    Thus, because the

trial court’s orders compelling Mr. Lawing to testify did not

dispose of the case below, Defendant’s appeals are interlocutory

in nature.

    However,       an    “immediate     appeal       is    available      from     an

interlocutory   order     or   judgment      which    affects       a   substantial

right.”   Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,

579 (1999) (quotation marks omitted); accord N.C. Gen. Stat. §§

1-277(a), 7A-27(d) (2013).             Our Supreme Court has defined a

“substantial right” as “a legal right affecting or involving a

matter of substance as distinguished from matters of form: a

right materially affecting those interests which a [person] is

entitled to have preserved and protected by law: a material

right.”   Sharpe, 351 N.C. at 162, 522 S.E.2d at 579 (quotation

marks and citation omitted) (alteration in original).

    “Admittedly the ‘substantial right’ test for appealability

of interlocutory orders is more easily stated than applied.                       It

is usually necessary to resolve the question in each case by
                                             -7-
considering the particular facts of that case and the procedural

context   in       which    the     order    from    which      appeal       is   sought    was

entered.”      Waters v. Qualified Personnel, Inc., 294 N.C. 200,

208, 240 S.E.2d 338, 343 (1978).                     “Essentially 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.                           “The

burden is on the appellant to establish that a substantial right

will be affected unless he is allowed immediate appeal from an

interlocutory order.”              Embler v. Embler, 143 N.C. App. 162, 166,

545 S.E.2d 259, 262 (2001).

      Here,    Defendant          contends    that       because       the   trial       court’s

orders do not indicate that Mr. Lawing is entitled to assert

legislative and/or quasi-judicial immunity, he has been denied a

substantial right that warrants our immediate review.                               Defendant

invites this Court to decide, as a general matter, that “any

public official, [including a county manager,] is entitled to

assert immunity and the accompanying testimonial privilege as to

those    actions        which     were    taken     in    the    sphere      of    legitimate

legislative or quasi-judicial activity.”
                                         -8-
       As an initial matter, we note that claims of immunity,

including     claims     of    legislative     and     quasi-judicial    immunity,

affect a substantial right for purposes of appellate review.

Cf. Farrell ex rel. Farrell v. Transylvania Cnty. Bd. of Educ.,

199 N.C. App. 173, 176, 682 S.E.2d 224, 227 (2009) (stating that

“claims   of    immunity       affect    a    substantial    right    entitled   to

immediate appeal”).           Moreover, we have held that individuals are

“entitled to absolute legislative immunity for all actions taken

in the sphere of legitimate legislative activity.”                      Northfield

Dev. Co., Inc. v. City of Burlington, 136 N.C. App. 272, 281,

523 S.E.2d 743, 749, aff’d in part, review dismissed in part,

352    N.C.    671,    535     S.E.2d    32    (2000)    (quotation     marks    and

citations omitted).           Individuals are also “entitled to absolute

quasi-judicial immunity for actions taken in the exercise of

their judicial function.”               Id.    “These immunities shield the

individual from the consequences of the litigation results and

provide a testimonial privilege.”                 Id. at 282, 523 S.E.2d at

749.    Thus, to the extent that Mr. Lawing, as a county manager,

performed      actions    “in    the    sphere    of    legitimate    legislative

activity” or      “in the exercise [of a] judicial function,” we

understand Defendant’s desire to keep Mr. Lawing’s intentions

and motives with respect to such conduct privileged.
                                           -9-
      However,     Defendant’s          contention   that     legislative         and/or

quasi-judicial      immunity       has    been    deprived     in    this     case    is

premised    on    the     assumption       that    the   trial      court’s       orders

preclude Defendant from making good-faith objections based on

privilege at Mr. Lawing’s deposition.                Indeed, at oral argument,

counsel for Defendant indicated that the trial court’s orders

summarily deny Defendant the ability to claim legislative and/or

quasi-judicial immunity during Mr. Lawing’s deposition.                       We find

no   such   exclusion      in     the    trial    court’s     orders     or   in     the

transcript of the motion hearing.

      With respect to the trial court’s written orders, there are

no   conclusions        denying    Mr.     Lawing     the     ability    to       assert

legislative      and/or    quasi-judicial         immunity.      While      the    trial

court’s 5 March 2013 order does explicitly conclude that Mr. Sue

is entitled to legislative and/or quasi-judicial immunity, such

a conclusion does not necessarily deny the right to Mr. Lawing.

Furthermore, the transcript of the motion hearing supports this

interpretation of the trial court’s orders.                   Specifically, after

allowing the motion to compel, the trial court stated:

            If there is an objection at a deposition, it
            can   be  noted.     And,  again,   it’s  my
            understanding of the rules that if the
            parties feel that they’re at an impasse
            during the taking of the deposition, that
            there are provisions for the parties to go
                                        -10-
            to the Court and ask for resolution of the
            specific issue[.]

Plainly,    the     trial   court      contemplated   the   possibility   that

Defendant could make good-faith objections based on legislative

and/or quasi-judicial immunity during Mr. Lawing’s deposition

and that any impasse between the parties would then be decided

by the trial court in the factual context in which it arises.

      Furthermore, when discussing the contents of the written

order, the trial court stated:

            I’m not comfortable signing an order that
            says that Mr. Lawing is entitled to the
            testimonial privilege, because I’m not sure
            if that’s the law[.]

Thus, the trial court expressed reservation in deciding whether

Mr.   Lawing   is    entitled     to    legislative   and/or   quasi-judicial

immunity.      Given this reservation, it would be inconsistent to

presume that the trial court was definitively precluding Mr.

Lawing’s entitlement to immunity in its written orders.                Rather,

the more consistent interpretation of the trial court’s orders

is that Defendant may object on behalf of Mr. Lawing if the

information       sought    in   Plaintiffs’    questioning    was   generated

either “in the sphere of legitimate legislative activity” or “in

the exercise [of a] judicial function.”               Id. at 281, 523 S.E.2d

at 749.
                                         -11-
    We therefore hold that the trial court’s orders do not

preclude Defendant from making objections based on privilege at

Mr. Lawing’s deposition if Defendant has a good-faith basis to

believe    that    the    information       is    protected        by    legislative          or

quasi-judicial         immunity.        Whether     Mr.      Lawing,         as    a   county

manager, actually performed actions “in the sphere of legitimate

legislative       activity”     or   “in    the     exercise           [of    a]    judicial

function”   is     not    properly      before     us   at    this      time.          Once    a

specific    question      has    been    propounded          by    Plaintiffs          to    Mr.

Lawing at the deposition, the trial court can properly decide

whether the information sought is protected by privilege.

    Moving        forward,      we   note        that   if        Defendant        withholds

information at Mr. Lawing’s deposition that would otherwise be

discoverable      by    claiming     that   the     information          is       privileged,

Defendant must “(i) expressly make the claim and (ii) describe

the nature of the documents, communications, or tangible things

not produced or disclosed, and do so in a manner that, without

revealing     information       itself      privileged            or    protected,          will

enable other parties to assess the claim.”                             N.C. R. Civ. P.

26(b)(5).     Furthermore, if Mr. Lawing fails to answer a question

at the deposition based on a claim of privilege, and the parties

reach an impasse as to whether the claim of privilege applies,
                                    -12-
Plaintiffs may move for an order compelling an answer pursuant

to N.C. R. Civ. P. 37(a).4         However, “[i]f the court denies the

motion in whole or in part, it may make such protective order as

it would have been empowered to make on a motion made pursuant

to Rule 26(c).”       N.C. R. Civ. P. 37(a)(2); see also N.C. R. Civ.

P. 26(c) (providing that the protective order can, among other

things, order “(i) that the discovery not be had; (ii) that the

discovery may be had only on specified terms and conditions[;

and] . . . (iv) that certain matters not be inquired into, or

that the scope of the discovery be limited to certain matters”).

      Accordingly, because we hold that the trial court’s orders

do   not   preclude    Defendant   from    making   good-faith   objections

based on privilege at Mr. Lawing’s deposition, Defendant has not

been deprived of any right nor suffered injury warranting our

immediate review.

                             III. Conclusion

      For the foregoing reasons, we dismiss Defendant’s appeals

as interlocutory.

      DISMISSED.



4
  At the discretion of the trial court, telephoning the judge
during the deposition may be an appropriate solution if a matter
arises to which to the parties feel an immediate decision is
required. North Carolina AIC Civil Procedure Pretrial 2 § 24:14
(1998).
                         -13-
Judges STROUD and DILLON concur.
