               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-697

                                Filed: 2 February 2016

Davie County, No. 14CVS115

JOSEPH A. MALDJIAN and MARIANA MALDJIAN, Plaintiffs,

              v.

CHARLES R. BLOOMQUIST, CAROLINE BLOOMQUIST, SIDNEY HAWES, and
KATE HAWES, Defendants.


        Appeal by defendants from Order entered 12 February 2015 by Judge Mark E.

Klass in Davie County Superior Court. Heard in the Court of Appeals 2 December

2015.


        FITZGERALD LITIGATION, by Andrew L. Fitzgerald, for plaintiffs.

        WILSON HELMS & CARTLEDGE, LLP, by Stuart H. Russell and Lorin J.
        Lapidus, for defendants.


        ELMORE, Judge.


        Charles R. Bloomquist, Caroline Bloomquist, Sidney Hawes, and Kate Hawes

(defendants) appeal from the trial court’s order granting Joseph A. Maldjian and

Mariana Maldjian’s (plaintiffs) motion to compel production of Exhibit A and Exhibit

B. Plaintiffs attempt to cross-appeal part of the trial court’s order denying plaintiffs’

motion to compel production of Exhibit C. Defendants filed a motion to dismiss

plaintiffs’ purported cross-appeal and a motion for sanctions.         Consistent with

defendants’ motion, we dismiss plaintiffs’ cross-appeal but we deny defendants’
                               MALDJIAN V. BLOOMQUIST

                                   Opinion of the Court



motion for sanctions. After careful consideration, we affirm the trial court’s order.

                                    I. Background

       In 2013, the Bloomquists purchased land from plaintiffs for their daughter,

Kate Hawes, and son-in-law, Sidney Hawes. Pursuant to a general warranty deed

recorded 20 May 2013, plaintiffs conveyed the land at 1803 Cana Road in Mocksville

(the Cana Road property) to the Bloomquists. Kate and Sidney Hawes leased the

property from the Bloomquists. The substantive issue underlying this lawsuit is a

dispute over the deed: the Maldjians claim that they only conveyed twenty-two acres

whereas the Bloomquists claim they purchased the full sixty-two acre tract.

According to the Offer to Purchase and Contract, twenty-two acres were to be

surveyed. The brief description on the deed states “62.816 acres Cana Road.” The

current appeal only pertains to the discovery stage of the proceeding.

       On 26 February 2014, Mariana Maldjian e-mailed Kate and Sidney Hawes

stating, inter alia,

              [T]here was an error on the deed, and it listed the full 63
              acres, instead of just the 22 acres that your parents had
              purchased. . . .

              [T]he taxes were paid for this year by Dr. Bloomquist for
              both your 22 acres, and for our 41 acres, and I want to
              facilitate the return of the tax money to Dr. Bloomquist for
              the tax he paid on our acreage.

              I don’t have your parents email [sic], so please forward this
              note to them also. Thank you in advance for your
              cooperation in correcting this matter. I think there might


                                          -2-
                              MALDJIAN V. BLOOMQUIST

                                  Opinion of the Court



             be some misunderstanding with the neighbors, I assured
             them that there is no way you would try to take advantage
             of a situation that was so clearly just a mistake in recording
             the deed!

      After failing to reach an agreement regarding the deed, plaintiffs filed a

complaint on 11 March 2014 asserting the following causes of action: reformation of

deed, trespass, unjust enrichment, conversion, and theft. Plaintiffs later filed an

amended complaint on 30 April 2014, asserting the same causes of action but adding

a claim for rent against all defendants and a claim for punitive damages against the

Bloomquists. The Davie County Superior Court entered an order on 2 July 2014

granting defendants’ motion to dismiss plaintiffs’ claims for trespass, conversion, and

punitive damages with prejudice, and granting plaintiffs’ oral motion to amend the

amended complaint to allege that plaintiffs have no adequate remedy at law.

      Plaintiffs filed a request for production of documents and first set of

interrogatories on 26 March 2014. Defendants responded, asserting attorney work

product and attorney-client privilege regarding question number three, and joint

defense privilege and marital privilege regarding question number five. As a result,

plaintiffs filed a motion to compel, requesting that defendants produce the documents

that they claim are protected by the joint defense privilege. In the motion, plaintiffs

included the privilege log that defendants submitted and specifically requested that

defendants disclose the 26-27 February 2014 e-mails, the 26 February 2014 e-mail,

and the 10 March 2014 e-mails, arguing that they are not shielded by the joint defense


                                         -3-
                               MALDJIAN V. BLOOMQUIST

                                   Opinion of the Court



privilege.

      On 15 December 2014, the trial court held a hearing and defendants submitted

the e-mails at issue for in camera review. The court designated the e-mails as Exhibit

A (26 February 2014 e-mail), Exhibit B (26-27 February 2014 e-mails), and Exhibit C

(10 March 2014 e-mails). On 12 February 2015, the court entered an order granting

plaintiffs’ motion to compel production of Exhibit A and Exhibit B, and it denied

plaintiffs’ motion to compel production of Exhibit C. Defendants filed notice of appeal

on 23 February 2015. Plaintiffs did not file notice of appeal. In plaintiffs’ brief, they

purport to cross-appeal the denial of their motion regarding Exhibit C. In response,

defendants filed a motion to dismiss and a motion for sanctions because plaintiffs did

not include their notice of cross-appeal in the record on appeal.

                                     II. Analysis

      “An order compelling discovery is generally not immediately appealable

because it is interlocutory and does not affect a substantial right that would be lost if

the ruling were not reviewed before final judgment.” Sharpe v. Worland, 351 N.C.

159, 163, 522 S.E.2d 577, 579 (1999) (citations omitted). When “a party asserts a

statutory privilege which directly relates to the matter to be disclosed under an

interlocutory discovery order, and the assertion of such privilege is not otherwise

frivolous or insubstantial, the challenged order affects a substantial right under

sections 1-277(a) and 7A-27(d)(1).” Id. at 166, 522 S.E.2d at 581.



                                          -4-
                              MALDJIAN V. BLOOMQUIST

                                  Opinion of the Court



      Defendants assert that this Court has jurisdiction because “this instant appeal

involves an interlocutory order compelling discovery of materials purportedly

protected by the work product doctrine[,]” codified at N.C. Gen. Stat. § 1A-1, Rule

26(b)(3). Defendants state that “orders compelling discovery of materials purportedly

protected by . . . the work product doctrine are immediately appealable[.]”

Remarkably, defendants fail to cite to N.C. Gen. Stat. § 1-277(a) or N.C. Gen. Stat. §

7A-27 despite their request for sanctions against plaintiffs for violating N.C.R. App.

P. 28(b)(4). Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure requires

an appellant’s brief to provide “[a] statement of the grounds for appellate review.

Such statement shall include citation of the statute or statutes permitting appellate

review.”

      Nonetheless, we review defendants’ appeal based on their argument that the

e-mails are privileged under the work product doctrine. See Sharpe, 351 N.C. at 166,

522 S.E.2d at 581 (holding that the challenged order affects a substantial right when

a party asserts a statutory privilege that is not frivolous or insubstantial); Dogwood

Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361,

365 (2008) (Noncompliance with Rule 28(b), “while perhaps indicative of inartful

appellate advocacy, does not ordinarily give rise to the harms associated with review

of unpreserved issues or lack of jurisdiction[ ]” and “normally should not lead to

dismissal of the appeal.”).



                                         -5-
                                 MALDJIAN V. BLOOMQUIST

                                     Opinion of the Court



        “Whether or not the party’s motion to compel discovery should be granted or

denied is within the trial court’s sound discretion and will not be reversed absent an

abuse of discretion.” Patrick v. Wake County Dep’t of Human Servs., 188 N.C. App.

592, 595, 655 S.E.2d 920, 923 (2008) (citation omitted). “A trial court’s actions

constitute an abuse of discretion upon a showing that a court’s actions are manifestly

unsupported by reason and so arbitrary that [they] could not have been the result of

a reasoned decision.” Id. (quoting State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700,

708 (1998)) (quotations omitted).

A. Order Granting Motion to Compel Production of Exhibit A and Exhibit B

        Defendants first argue, “[T]he trial court misapplied North Carolina

jurisprudence when it partially granted plaintiffs’ motion to compel based solely upon

the incorrect legal standard ‘for good cause shown.’ ” After acknowledging that a trial

court is not required to make findings of fact and conclusions of law unless requested

by a party, defendants argue that the trial court made an “incorrect conclusion of

law.”    Plaintiffs state, “The argument reads as a technical ‘gotcha’ and lacks

substantive merit.”

        In its entirety, the trial court’s order states,
               THIS MATTER CAME ON FOR HEARING before the
               undersigned at the 15 December 2014 Session of the Davie
               County, North Carolina, General Court of Justice, Superior
               Court Division on Plaintiffs’ Motion to Compel. In response
               to Plaintiffs’ Motion, Defendants submitted the e-mail
               communications at issue for in camera review and
               designated the e-mails as Exhibit A, Exhibit B and Exhibit

                                             -6-
                              MALDJIAN V. BLOOMQUIST

                                   Opinion of the Court



             C. After reviewing the e-mail communications in camera,
             reviewing the record in the case, authorities presented and
             arguments of counsel, and for good cause shown, the
             undersigned:

             (1) GRANTS Plaintiffs’ Motion to Compel as to the e-mail
             communications submitted by Defendants to the court for
             in camera review as Exhibit A and Exhibit B and ORDERS
             Defendants to produce the e-mail communications within
             ten (10) days from entry of this Order; and

             (2) DENIES Plaintiffs’ Motion to Compel as to the e-mail
             communication submitted by Defendants to the court for in
             camera review as Exhibit C.

      Pursuant to Rule 52 of the North Carolina Rules of Civil Procedure, findings

of fact and conclusions of law are necessary only when requested by a party. N.C.

Gen. Stat. § 1A-1, Rule 52(a)(2) (2013). “It is presumed, when the Court is not

required to find facts and make conclusions of law and does not do so, that the court

on proper evidence found facts to support its judgment.” Sherwood v. Sherwood, 29

N.C. App. 112, 113–14, 223 S.E.2d 509, 510–11 (1976) (citations omitted).

      Here, neither party requested findings of fact and conclusions of law. We reject

defendants’ contention that the trial court misunderstood the appropriate legal

standard regarding a motion to compel discovery of purportedly privileged documents

based solely on its introductory statement. Rather, it is evident from the record that

the trial court did not include its conclusions of law in the order and only entered its

judgment.

      Alternatively, defendants argue that the trial court abused its discretion in


                                          -7-
                               MALDJIAN V. BLOOMQUIST

                                   Opinion of the Court



granting plaintiffs’ motion to compel because defendants established that the e-mails

were shielded from discovery pursuant to the work product doctrine or the joint

defense/common interest doctrine.       Defendants claim, “Ms. Bloomquist’s emails

outline a defense strategy, identify pertinent materials to mount a defense, discuss

of the selection of counsel to represent all defendants, and include interrelated mental

impressions.” We disagree.

      “[T]he party asserting work product privilege bears the burden of showing ‘(1)

that the material consists of documents or tangible things, (2) which were prepared

in anticipation of litigation or for trial, and (3) by or for another party or its

representatives which may include an attorney, consultant, surety, indemnitor,

insurer or agent.’ ” Evans v. United Servs. Auto. Ass’n, 142 N.C. App. 18, 29, 541

S.E.2d 782, 789 (2001) (citations omitted). “If a document is created in anticipation

of litigation, the party seeking discovery may access the document only by

demonstrating a ‘substantial need’ for the document and ‘undue hardship’ in

obtaining its substantial equivalent by other means.” Id. at 28, 541 S.E.2d at 789

(quoting N.C. Gen. Stat. § 1A-1, Rule 26(b)(3)). “The protection is allowed not only

[for] materials prepared after the other party has secured an attorney, but those

prepared under circumstances in which a reasonable person might anticipate a

possibility of litigation.” Id. at 28, 541 S.E.2d at 788–89 (quoting Willis v. Power Co.,

291 N.C. 19, 35, 229 S.E.2d 191, 201 (1976)) (quotations omitted). “Because work



                                          -8-
                              MALDJIAN V. BLOOMQUIST

                                  Opinion of the Court



product protection by its nature may hinder an investigation into the true facts, it

should be narrowly construed consistent with its purpose[,] which is to safeguard the

lawyer’s work in developing his client’s case.” Id. at 29, 541 S.E.2d at 789 (citations

and quotations omitted).

      Pursuant to the abuse of discretion standard, defendants must establish that

the trial court’s determination was manifestly unsupported by reason and so

arbitrary that it could not have been the result of a reasoned decision. See Patrick,

188 N.C. App. at 595, 655 S.E.2d at 923. Here, however, the trial court’s

determination was the result of a reasoned decision. Defendants submitted the e-

mails at issue to the trial court for in camera review. After hearing arguments from

both parties and reviewing the record, the authorities presented, and the e-mails at

issue, the trial court exercised its judgment in ordering defendants to produce Exhibit

A and Exhibit B but determining that Exhibit C was protected.           Moreover, we

presume that the court, on proper evidence, found facts to support its judgment. See

Sherwood, 29 N.C. App. at 113–14, 223 S.E.2d at 510–11. Accordingly, the trial court

made a reasoned decision and did not abuse its discretion.

      Because defendants present no binding authority to support their argument

regarding the common interest doctrine, we take this issue as abandoned. See N.C.R.

App. P. 28(b)(6) (2009).

B. Defendants’ Motion to Dismiss Plaintiffs’ Cross-Appeal



                                         -9-
                              MALDJIAN V. BLOOMQUIST

                                  Opinion of the Court



      Defendants argue that “plaintiffs, as cross-appellants have failed to include

notice of their cross-appeal in the record on appeal in this cause (COA 15-697) as

mandated by Rules 3 and 9 of the North Carolina Rules of Appellate Procedure.”

Thus, defendants claim that plaintiffs’ purported cross-appeal must be dismissed on

jurisdictional grounds.

      Plaintiffs state that they filed a cross-appeal but included it in the record for

related case COA 15-729 and not in the record for this case. Additionally, plaintiffs

“fully concede that the appeal of a denial of a motion to compel is not, under North

Carolina jurisprudence, ordinarily appealable before final judgment. Here,

[plaintiffs] contend and ask this Court to review the one single document that was

not ordered to be compelled because this partial denial of the motion is the exact same

motion being appealed by the defendants.” Alternatively, plaintiffs “ask this Court

receive the cross-appeal as a petition for writ under Rule 21.” The only authority that

plaintiffs include is Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980),

citing it for the proposition that “[t]he purpose of not allowing interlocutory appeals

is to prevent fragmentary and premature appeals.”

      “Under Rule 3(a) of the Rules of Appellate Procedure, a party entitled by law

to appeal from a judgment of superior court rendered in a civil action may take appeal

by filing notice of appeal with the clerk of superior court and serving copies thereof

upon all other parties in a timely manner. This rule is jurisdictional.” Crowell



                                         - 10 -
                               MALDJIAN V. BLOOMQUIST

                                   Opinion of the Court



Constructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563, 402 S.E.2d 407, 408 (1991)

(citing Booth v. Utica Mutual Ins. Co., 308 N.C. 187, 301 S.E.2d 98 (1983)). “If the

requirements of this rule are not met, the appeal must be dismissed.” Id. (citing

Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C. App. 188, 394 S.E.2d 683 (1990)).

“The appellant has the burden to see that all necessary papers are before the

appellate court.” Id. (citing State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965)).

“The notice of appeal must be contained in the record.” Id. (citing Brady v. Town of

Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971)). Accordingly, because plaintiffs

failed to include notice of appeal in the record in this case, we grant defendants’

motion to dismiss plaintiffs’ purported cross-appeal.

C. Defendants’ Motion for Sanctions

      Pursuant to Rules 34 and 37 of the Rules of Appellate Procedure, defendants

move for “an order imposing monetary sanctions in the form of expenses, including

reasonable attorney fees, incurred by defendants in having to defend against

plaintiffs’ frivolous interlocutory cross-appeal.” They claim that monetary sanctions

are “particularly necessary here given plaintiffs’ egregious conduct.”

      In Spivey v. Wright’s Roofing, this Court denied a motion for sanctions, stating,

“Although we agree . . . that Defendants’ position was not a strong one and interpret

the underlying theme of Defendants’ challenge to the Commission’s order to be more

equitable than legal in nature, we conclude, ‘[i]n our discretion,’ that sanctions should



                                          - 11 -
                             MALDJIAN V. BLOOMQUIST

                                 Opinion of the Court



not be imposed upon counsel pursuant to Rule 34. 225 N.C. App. 106, 119, 737 S.E.2d

745, 753–54 (2013) (quoting State v. Hudgins, 195 N.C. App. 430, 436, 672 S.E.2d

717, 721 (2009)).

      Here, although plaintiffs attempt to raise a new issue via cross-appeal and

failed to include notice of appeal in the record in this case, we do not think that

sanctions are warranted. Accordingly, we deny defendants’ motion.

                                 III. Conclusion

      The trial court did not abuse its discretion in granting plaintiffs’ motion to

compel production of Exhibit A and Exhibit B. We grant defendants’ motion to

dismiss plaintiffs’ purported cross-appeal and we deny defendants’ motion for

sanctions.

      AFFIRMED.

      Judges CALABRIA and ZACHARY concur.




                                        - 12 -
