                            NO. COA13-818

                   NORTH CAROLINA COURT OF APPEALS

                        Filed: 1 April 2014


JERRY M. MEDLIN,
     Plaintiff,

    v.                               Durham County
                                     No. 11-CvS-1525
NORTH CAROLINA SPECIALTY HOSPITAL,
LLC, TIMOTHY N. YOUNG, and NORTH
CAROLINA EYE, EAR, NOSE & THROAT,
P.A.,
     Defendants.


    Appeal by defendant North Carolina Specialty Hospital, LLC

from orders entered 11 March 2013 and 14 March 2013 by Judge

Paul G. Gessner in Superior Court, Durham County.      Heard in the

Court of Appeals 12 December 2013.


    Bill Faison, for plaintiff-appellee.

    Brown Law LLP, by Gregory W. Brown and Amy H. Hopkins, for
    defendant-appellant North Carolina Specialty Hospital, LLC.


    STROUD, Judge.


    Defendant North Carolina Specialty Hospital, LLC appeals

orders addressing various motions regarding     pretrial matters.

For the following reasons, we affirm and remand to the trial

court for determination of the reasonable amount of attorney

fees incurred by plaintiff in responding to this appeal.
                                      -2-
                              I.     Background

     On 5 January 2011, plaintiff filed a verified complaint

against     defendants     for     medical     malpractice          arising     from

plaintiff’s cataract surgery, which was performed by defendant

Timothy N. Young, an employee of defendant North Carolina Eye,

Ear, Nose & Throat, P.A.             Plaintiff alleged that he suffered

permanent damage to his eye and extreme pain as a result of the

negligent use of Methylene Blue in his eye.                   Methylene Blue is

known to be toxic to the eye, but it was mistakenly used instead

of   VisionBlue,   a     non-toxic    stain        intended   for    use   in    eye

surgery.     On or about 21 March 2011, defendant North Carolina

Specialty     Hospital,      LLC     (“defendant        Hospital”)         answered

plaintiff’s complaint by denying liability and asserting three

“affirmative    defenses,”       stated   as   a    non-specific     failure     “to

state facts sufficient to constitute a cause of action[;]” “all

applicable     statutes      of      limitation        and     repose[;]”        and

“[p]laintiff’s failure to comply with Rule 9(j) of the North

Carolina Rules of Civil Procedure.”                 Various pretrial motions,

many involving discovery, ensued, and we will discuss only those

relevant for purposes of this appeal.
                              -3-
    On or about 7 March 2013, the trial court signed an order

(“Order 1”) addressing pretrial motions made by the parties.

The order provided that

         the Court allows the Plaintiff’s Motion to
         Shorten Time for giving notice of this
         hearing so that the hearing may go forward.
         Moreover, the Court in its discretion and
         pursuant to Paragraph 13 of the Consent
         Amended Discovery Scheduling Order of 3
         October 2012 extends the time set forth in
         Paragraph 6 of that Order through and
         including March 8, 2013.    In its discretion
         the Court denies the Hospital’s Motion For
         Protective   Order    regarding   depositions
         noticed for March 8, 2013, and further in
         its discretion orders that the depositions
         of Joy Boyd and Cathy Pruitt and Randy
         Pisko, and the Civil Procedure Rule 30(b)(6)
         Deposition of the Hospital . . . [shall go
         forward prior to 15 March 2013] under the
         terms and conditions as noticed by the
         Plaintiff.
              Plaintiff’s Motion to Compel Discovery
         is noticed for hearing March 11, 2013.     To
         the extent Hospital’s Motion For Protective
         Order is directed at the Notice of Hearing
         and/or the timing of the Notice of Hearing
         for   March   11,  2013,    in  the   Court’s
         discretion the time for giving notice is
         shortened to the time when it was given, and
         Hospital’s Motion is denied, and hearing on
         Plaintiff’s Motion to Compel Discovery shall
         go forward on March 11, 2013 as noticed.
         The Court has not taken up the substantive
         issues raised by the Plaintiff’s Motion to
         Compel   or   the   Hospital’s   Motion   for
         Protective Order relating to the Plaintiff’s
         Motion to Compel, leaving those matters for
         hearing on March 11, 2013.

    On 14 March 2013, the trial court entered an order (“Order
                                      -4-
2”)   regarding    further       pretrial       motions.        After    reviewing

numerous      documents          including         motions,       answers       to

interrogatories,      a   response   to     a    request   for    production   of

documents, deposition transcripts, exhibits, and authority, the

trial court found

           as a Fact that in the course of the
           depositions of Joy Boyd and Cathy Pruitt
           Hospital’s counsel instructed both not to
           answer questions regarding the process of
           the investigation undertaken as a result of
           events   described    in   the   Plaintiff’s
           complaint.   The Court, in its discretion
           orders that the questions Joy Boyd was
           instructed not to answer all be answered as
           if posed by written interrogatories and
           counsel for the Hospital shall serve answers
           on counsel for Plaintiff by 4 o’clock p.m.
           March 15, 2013 by fax, (email if agreed to
           by the parties) or hand delivery as follows
           . . .

The trial court then recited portions of Joy Boyd’s deposition

and ordered

           the questions Cathy Pruitt was instructed
           not to answer as set out below be answered
           as if posed by written interrogatories and
           counsel for the Hospital shall serve answers
           on counsel for Plaintiff by 4 o’clock p.m.
           March 15, 2013 by fax (email if agreed to by
           the parties) or hand delivery as follows . .
           . .

The   trial   court       then   recited     portions      of    Cathy   Pruitt’s

deposition.   The trial court went on to order

           that the Hospital shall provide a “Privilege
                                      -5-
         Log” with the specificity as requested in
         Paragraph 23 of the Plaintiff’s First Set of
         Interrogatories to Hospital and shall serve
         the “Privilege Log” on counsel for Plaintiff
         by 4 o’clock p.m. March 15, 2013 by fax,
         (email if agreed to by the parties) or hand
         delivery.
              The   Court   has   reviewed   Defendant
         Hospital’s Exhibit 1 In Camera and in its
         discretion concludes that those documents
         were prepared pursuant to NCGS § 131E-95(b)
         and are protected from production by the
         peer review statues.
              The   Court   having   determined   that
         eighteen of the twenty-one questions Joy
         Boyd and Cathy Pruitt were instructed not to
         answer are ordered answered, and that the
         privilege log sought by Plaintiff of the
         Hospital is ordered produced that Plaintiff
         is entitled to recover attorneys’ fees and
         costs for bringing forward his Rule 37
         Motion.   The Court reserves ruling on the
         amount for further hearings into the time
         this matter required of Plaintiff’s counsel
         including bringing forward both motions to
         compel, preparing for hearing, attending
         hearing and preparing this Order.

Defendant Hospital appeals Order 1, Order 2, and “the March 11,

2013 Oral Order [made between Order 1 and Order 2] requiring the

production   of   peer-review    privileged    documents   for   in   camera

review by the trial judge and allowing the Plaintiff’s Motion to

Shorten Time to Notice Hearing on the Plaintiff’s Motion to

Compel” (“Ruling”).

                                II.   Ruling

    As to the Ruling on the plaintiff’s Motion to Shorten Time
                                    -6-
to Notice Hearing on “the Plaintiff’s Motion to Compel[,]” no

written   order    was   ever   entered.    This    Court       has   previously

determined that parties

              cannot appeal from and this Court cannot
              consider an order which has not been
              entered. See Munchak Corp. v. McDaniels, 15
              N.C. App. 145, 147–48, 189 S.E.2d 655, 657
              (1972) (“The general rule is that, the mere
              ruling, decision, or opinion of the court,
              no judgment or final order being entered in
              accordance therewith, does not have the
              effect of a judgment, and is not reviewable
              by appeal or writ of error.      As to oral
              opinions it is said that, a mere oral order
              or decision which has never been expressed
              in a written order or judgment cannot, under
              most authorities, support an appeal or writ
              of error.   There is case authority in North
              Carolina for this rule.       In Taylor v.
              Bostic, 93 N.C. 415 (1885) the trial court
              entered a written statement of his opinion,
              but no order or judgment was entered.    The
              North Carolina Supreme Court held that the
              appeal   was   premature,  there   being  no
              judgment and therefore no question of law
              presented from which appeal could be taken.”
              (citations, quotation marks, and brackets
              omitted)).

Dafford v. JP Steakhouse LLC, 210 N.C. App. 678, 683, 709 S.E.2d

402,    406    (2011).     Accordingly,    we   will      not     consider     any

arguments on appeal regarding the trial court’s oral Ruling.

See id.

                         III. Interlocutory Order

       Defendant    Hospital     acknowledges      that     its       appeal   is
                                       -7-
interlocutory but contends that a substantial right regarding

“the production of privileged materials and testimony”                    would be

affected    should    this    Court   not    hear   its    appeal.        Plaintiff

contends that defendant Hospital’s appeal asserts that it is

regarding privileged material but in actuality the material is

not   privileged.        Plaintiff      further     argues      that      defendant

Hospital attempts to appeal a decision the trial court made upon

its   own   request   and     other   issues   which      in   no   way   affect   a

substantial right.

                 Generally, orders denying or allowing
            discovery are not appealable since they are
            interlocutory    and    do    not    affect    a
            substantial right which would be lost if the
            ruling   were   not  reviewed     before   final
            judgment. As this Court has explained: Our
            appellate   courts   have     recognized    very
            limited exceptions to this general rule,
            holding that an order compelling discovery
            might affect a substantial right, and thus
            allow immediate appeal, if it either imposes
            sanctions   on   the   party   contesting    the
            discovery, or requires the production of
            materials    protected     by    a    recognized
            privilege.

Britt v. Cusick        ___ N.C. App. ___, ___, ___ S.E.2d ___, ___

(Jan. 7, 2014) (No. COA13-387) (citations and quotation marks

omitted).     Accordingly, we consider defendant Hospital’s appeal

as to issues regarding privilege and these issues alone; see

id., to the extent           that plaintiff is correct, and defendant
                                          -8-
Hospital has invited its own “error” or raised issues which

would not affect a substantial right, we will consider whether

said    issues       are   appropriate     for    our     substantive     review     on

appeal.

      IV.   Depositions Regarding Peer Review Privileged Matters

       Defendant Hospital first contends that “[t]he Trial Court

erred    when    it     ruled    that    Plaintiff’s       Counsel   could      secure

deposition       testimony       on     Peer     Review    Privileged      matters.”

Defendant Hospital argues that the trial court erred in Order 2

when it

               ordered   that  the  depositions   of   Randi
               Shults, Joy Boyd, and Cathy Pruitt proceed
               without placing appropriate limitations on
               their   scope  to   ensure  that    questions
               regarding matters that were the subject of
               evaluation and review by The Hospital’s Peer
               Review Committee were not posed, thereby
               jeopardizing The Hospital’s Peer Review
               Privilege[,]

and     when    it    “ordered    that     the    handful    of   questions        that

undersigned      counsel     instructed        witnesses    Joy   Boyd    and   Cathy

Pruitt not to answer on the basis of the Peer Review Privilege

be answered as if posed by written interrogatories.”

       As to the trial court’s alleged failure to limit the scope

of     various       depositions,     defendant      Hospital     makes    no    real

argument other than stating that the trial court erred nor does
                                           -9-
defendant Hospital cite any law supporting this assertion. In

addition, the trial court did actually limit the scope of the

depositions and did not permit all of the questions requested by

plaintiff.      Indeed, in this argument the only relief defendant

Hospital requests is that this Court “vacate Judge Gessner’s 14

March 2013 Order requiring The Hospital to provide additional

testimony from Ms. Boyd and Nurse Pruitt.”                          Accordingly, we

address     only   the     issue        regarding   the     trial     court’s      order

requiring Joy Boyd and Cathy Pruitt to answer certain questions

which     had   been     asked     at     the    depositions     in     the    form    of

interrogatories.        See Holleman v. Aiken, 193 N.C. App. 484, 508,

668 S.E.2d 579, 594 (2008) (“[P]laintiff                     has cited no legal

authority in support of her argument, and pursuant to North

Carolina    Rule   of    Appellate        Procedure    28(b)(6),      it      is   deemed

abandoned.      See N.C.R. App. P. 28(b)(6).”).

    In order to determine if the trial court erred in requiring

individuals to provide allegedly privileged information we must

first     determine      if   the       information    is      indeed      privileged.

Defendant Hospital contends that the requested information is

privileged pursuant to North Carolina General Statute § 131E-

95(b). Questions         as to     what is privileged pursuant to North

Carolina General Statute                § 131E-95(b) are reviewed de novo.
                                   -10-
Bryson v. Haywood Reg’l Med. Ctr., 204 N.C. App. 532, 535, 694

S.E.2d 416, 419 (“Thus, we review de novo whether the requested

documents are privileged under N.C. Gen. Stat. § 131E–95(b).”),

disc. review denied, 364 N.C. 602, 703 S.E.2d 158 (2010).

    As to North Carolina General Statute § 131E–95, this Court

has stated,

            By its plain language, N.C. Gen. Stat. §
            131E–95    creates   three    categories    of
            information protected from discovery and
            admissibility at trial in a civil action:
            (1)   proceedings   of   a   medical    review
            committee,    (2)  records    and    materials
            produced by a medical review committee, and
            (3) materials considered by a medical review
            committee. Additionally, N.C.G.S. § 131E–95
            states: However, information, documents, or
            other records otherwise available are not
            immune from discovery or use in a civil
            action merely because they were presented
            during proceedings of the committee.

Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678

S.E.2d    787,   791-92   (2009)    (citation   and   quotation   marks

omitted),    disc. review denied, 363 N.C. 813, 693 S.E.2d 353

(2010).     Our Supreme Court has further clarified though that the

            provisions   [in   North    Carolina   General
            Statute § 131E–95] mean that information, in
            whatever   form  available,    from   original
            sources   other  than   the   medical   review
            committee is not immune from discovery or
            use at trial merely because it was presented
            during medical review committee proceedings;
            neither should one who is a member of a
            medical review committee be prevented from
                                  -11-
           testifying regarding information he learned
           from   sources   other   than   the   committee
           itself, even though that information might
           have been shared by the committee.
                The statute is designed to encourage
           candor and objectivity in the internal
           workings   of   medical    review   committees.
           Permitting    access    to   information    not
           generated by the committee itself but merely
           presented to it does not impinge on this
           statutory purpose. These kinds of materials
           may be discovered and used in evidence even
           though they were considered by the medical
           review committee.    This part of the statute
           creates an exception to materials which
           would otherwise be immune under the third
           category of items as set out above.

Shelton v. Morehead Memorial Hospital, 318 N.C. 76, 83-84, 347

S.E.2d 824, 829 (1986) (citation omitted).

      Plaintiff contends that neither Joy Boyd nor Cathy Pruitt

“are members of a peer review committee or ever met with a peer

review committee related to this matter.”         While we do not have

the   entire   deposition   of   either   Joy   Boyd   or   Cathy   Pruitt,

defendant Hospital’s brief identifies Joy Boyd as the Hospital’s

Director of Surgical Services and Cathy Pruitt as a nurse who

assisted another nurse in using the Pyxis machine that dispensed

Methylene Blue.     Defendant Hospital does not contend that Joy

Boyd or Cathy Pruitt are members of the peer review committee or

that they ever met with a peer review committee though it does

contend that Joy Boyd prepared documents for review by the peer
                                    -12-
review committee.       Defendant Hospital directs us to portions of

the record which it contends show that Joy Boyd and Cathy Pruitt

testified “that everything they did in terms of discussing and

investigating   the     incident   was     done    within    the   Peer    Review

Process[;]” however, the cited portion of the record includes

statements made by defendant Hospital’s attorney, not testimony

from   either   Joy    Boyd   or   Cathy    Pruitt.         Furthermore,    even

defendant Hospital’s attorney stated in the cited portions,

            I asked each one of them, “was it your
            understanding when these conversations are
            going on that it was part of the peer-review
            process?”   Ms. Boyd said her role was to
            work with the risk manager to gather data at
            the direction of the peer-review committee.
            That was what she says. ‘I prepare things’
            – page 25, line 2.    ‘I prepare things that
            go to the peer-review process.’”

(Emphasis added.)       But “prepar[ing] things” for a peer review

committee    does     not   necessarily     mean     that    the   information

gathered is privileged:

                 [t]he statute is designed to encourage
            candor and objectivity in the internal
            workings   of   medical    review  committees.
            Permitting    access    to   information   not
            generated by the committee itself but merely
            presented to it does not impinge on this
            statutory purpose. These kinds of materials
            may be discovered and used in evidence even
            though they were considered by the medical
            review committee.

Id.
                                                  -13-
    Lastly,          and     most          importantly,           we    have       reviewed        the

questions       which      the    trial          court    ordered       Joy    Boyd       and   Cathy

Pruitt     to     answer         in        the     form      of     responses         to    written

interrogatories,           and        we     disagree        with      defendant          Hospital’s

contentions that such questions are privileged pursuant to North

Carolina    General         Statute          §    131E–95.          The      questions       are   as

follows:

                    “Did you prepare a report as a result
                     of your investigation?”

                    “Tell me what you did.     When you say
                     you and she worked together what are
                     you trying to describe to me?”

                    “Well, tell me how it works.   How did
                     you work together, what did you do?
                     You’re   –  that’s   what I   want  to
                     understand.   If – If I were sitting
                     there watching the two of you, tell me
                     what I see you doing.”

                    “Tell me              what    I   see    the      two    of   you
                     doing.”

                    “Now   when  you   say   we  prepare                             a
                     document, who – who dictates it?”

                    “Did you do that in this instance?”

                    “What part of it did you prepare?”

                    “In this instance did you make notes?”

                    “Have you preserved those                         notes,      the
                     one made in this instance?”
                   -14-

   “Where do you keep those notes if you
    have preserved them in this instance?”

   “In this instance was the report that
    you prepared for this instance kept in
    risk management?”

   “[D]id you appear before a peer review
    committee to discuss this incident?”

   “Did you appear before the peer review
    committee in this instance?”

   “Did you investigate why   Vision   Blue
    was not in the Pyxis?”

   “So what mentoring did risk management
    do for you in this – in the interview
    process for this incident?”

   “Other     than    gathering   factual
    information from the nurses did the
    report you generated do anything other
    than – anything else?”

   “Do you maintain a copy of the document
    you prepared in your offices or in the
    offices under your supervision and
    control?”

   “Did Joy Boyd interview you about this
    matter?”

   “Did you talk with Joy Boyd after this
    event occurred?”

   “At any time have you given a written
    statement to anyone regarding your
    interaction with Ms. Whitt relating to
    the removal of methylene blue from the
    Pyxis machine on May 19, 2008?”

   “Have you had an opportunity to review
                                     -15-
                 any statement that you might have –
                 well, let [sic] see, have you had an
                 opportunity to review any statements
                 you might have given?”

       The questions are not regarding the (1) proceedings of a

medical review committee [or] (2) records and materials produced

by a medical review committee[.]”             Woods, 198 N.C. App. at 126,

678 S.E.2d at 792. While the questions may implicate “materials

considered by a medical review committee[;]” id., there is “an

exception to materials which would otherwise be immune under the

third category of items” for “information not generated by the

committee itself but merely presented to it[.]”                    Shelton, 318

N.C. at 83-84, 347 S.E.2d           at 829.       To the extent that any

questions Joy Boyd and Cathy Pruitt were ordered to answer were

regarding    information     that    is     protected     by   North   Carolina

General Statute § 131E-95, the questions most certainly fall

into the exception of the third category.               See id.    In addition,

by   requiring   responses   to     written    interrogatories      instead   of

oral   answers   to   deposition     questions,     the    trial    court   gave

defendant’s counsel the opportunity to ensure that a witness

does not inadvertently disclose information which may go beyond

the scope of the question asked.              Accordingly, the trial court

did not     err in requiring the          non-privileged questions to be

answered, and this argument is overruled.
                                      -16-
                              V.    In Camera Review

      Defendant   Hospital     next    contends   that   “the     trial   court

erred when it required the defendant [Hospital] . . . to produce

for in camera inspection [of] peer review privileged documents.”

(Original in all caps.)            Defendant Hospital        argues   that the

trial court should have relied upon other evidence to determine

that the documents were indeed privileged, as defendant Hospital

claimed they were.       Defendant Hospital cites no authority for

its   assertion   that   if    a   party     claims   that    a   document   is

privileged, then the trial court must accept this claim without

reviewing the document in camera to make an independent legal

determination of privilege.         Indeed, there is abundant authority

otherwise.   See, e.g., Bryson, 204 N.C. App. at 535, 694 S.E.2d

at 419 (noting that whether a document is privileged pursuant to

North Carolina General Statute § 131E–95 is a question of law).

Both the United States Supreme Court and our Supreme Court have

approved in camera review of information which is subject to a

claim of privilege:

                More than a century ago, this Court
           held that the responsibility of determining
           whether    the   attorney-client   privilege
           applies belongs to the trial court, not to
           the attorney asserting the privilege. Thus,
           a trial court is not required to rely solely
           on an attorney’s assertion that a particular
           communication falls within the scope of the
                               -17-
         attorney-client privilege.       In cases where
         the party seeking the information has, in
         good faith, come forward with a nonfrivolous
         assertion that the privilege does not apply,
         the trial court may conduct an in camera
         inquiry     of    the     substance     of    the
         communication. See State v. Buckner, 351
         N.C. 401, 411–12, 527 S.E.2d 307, 314 (2000)
         (trial court must conduct in camera review
         when there is a dispute as to the scope of a
         defendant’s waiver of the attorney-client
         privilege, such as would be the case when a
         defendant    has    asserted    an   ineffective
         assistance of counsel claim); State v.
         Taylor, 327 N.C. at 155, 393 S.E.2d at 807
         (same); see also Willis v. Duke Power Co.,
         291 N.C. 19, 36, 229 S.E.2d 191, 201 (1976)
         (trial    court    may    require    in    camera
         inspection of documents to determine if they
         are work-product).
              We note that the United States Supreme
         Court has also placed its imprimatur on the
         need    for    in    camera    inspections     in
         circumstances    where    application    of   the
         privilege is contested.        Zolin, 491 U.S.
         554, 105 L.Ed. 2d 469 (in camera review to
         determine whether the crime-fraud exception
         to   attorney-client      privilege     applies);
         United States v. Nixon, 418 U.S. 683, 41
         L.Ed. 2d 1039 (1974) (in camera review to
         determine whether communications are subject
         to the executive privilege). The necessity
         for an in camera review of attorney-client
         communications    in    some   cases    is   also
         endorsed by the Restatement of the Law
         Governing Lawyers:         In cases of doubt
         whether the privilege has been established,
         the   presiding    officer   may   examine    the
         contested communication in camera.

In re Investigation of Death of Eric Miller, 357 N.C. 316, 336-

37, 584 S.E.2d 772, 787 (2003) (citations and quotation marks
                                          -18-
omitted).       Although Miller addressed attorney-client privilege,

the   general     principles       which      apply    here   are      the        same:      the

determination of privilege is a question of law which the trial

judge    must    decide    and    in    camera     review     of      the    evidence         in

question is proper.               See generally id.           Thus, the case law

supports that on the question of privilege, the trial court

certainly       has   an   interest        in    ensuring     that          the     asserted

information is indeed privileged and need not rely on the word

of the interested party or its counsel.                   See generally id.

      Defendant       Hospital     goes     on    to     contend      that        the    trial

court’s   “in     camera       review   has     colored    its     reception            to   The

Hospital’s defenses in this case and, if left unchecked, will

likely      produce        a      damaging        effect         on         Peer        Review

Investigations[.]”1        Defendant Hospital cites to portions of the

trial court’s statements in court that “someone is not acting

reasonably,”      claiming       that   the      trial    court’s      review           of   the

evidence caused the court to be “unmistakabl[y]” “prejudice[d]”

against it.       But the trial court did not indicate which party

may not be “acting reasonably,” and even assuming arguendo the

1
  We also note that the documents which defendant Hospital claims
that the trial court should not have reviewed in camera were not
included in the record on appeal so that we could also review
them in camera. Presumably, defendant Hospital feared that we,
like the trial court, would be unable to maintain our
impartiality if we were to review these records.
                                            -19-
trial   court       was    implying    that       defendant         Hospital    was   being

unreasonable        there    is    absolutely       no    evidence      that    the   trial

court made such statements because of the documents it reviewed

in    camera.             Defendant    Hospital          “doth      protest     too   much,

methinks.”      William Shakespeare, Hamlet act 3, sc. 2.

      In addition, because of their duty to rule upon claims of

privilege and admissibility of evidence, it is extremely common

for   trial     judges      to    acquire       knowledge      of    evidence    which   is

privileged,         irrelevant,            unfairly       prejudicial,           illegally

gathered,      or   otherwise       incompetent,         but     they   also    are   quite

accustomed to ruling upon cases without consideration of the

content   of    any       privileged       or    incompetent        evidence    previously

viewed.       Were we to          accept defendant          Hospital’s         argument, a

trial   judge       would    need     to    be    recused      after    any     in    camera

consideration of seriously damaging evidence, even if the judge

determines that the evidence is protected by privilege, upon the

theory that the trial judge may then be prejudiced against the

party who sought to protect the evidence.                           There is simply no

legal basis for such a claim, nor any factual basis to think

that such a thing happened in this case.                              This argument is

overruled.

                                      VI.       Notice
                                          -20-
    Defendant        Hospital      next    contends    that    “the    trial     court

erred    in   holding      ex    parte     hearings    without       affording     the

defendant [Hospital] . . . adequate notice and a meaningful

opportunity to be heard.”              (Original in all caps.)             The hearing

of which defendant complains here was the 6 March 2013 hearing

as to defendant Hospital’s Motion for Protective Order.                            Yet

what defendant seeks to characterize as an                      ex parte       hearing

without adequate notice to all parties was actually a properly

noticed hearing that defendant Hospital made a deliberate choice

not to attend.        Even according to defendant Hospital’s brief,

after being notified of the time of the hearing, “[t]he Hospital

undertook great efforts to inform the Court that it could not

attend the 6 March 2013 hearing on its Motion[.]”                          Indeed, the

record   contains      a   letter       from     defendant    Hospital’s       counsel

noting that though aware of the hearing “none of our team is

available to be heard this week. . . . For our part, we simply

have other long-standing obligations in other cases in order to

be ready to try this case.”               Defendant Hospital’s “long-standing

obligations     in     other      cases”       was,   according       to     defendant

Hospital, a meeting with expert witnesses at counsel’s office,

and use of the word “team” seems to indicate that defendant

Hospital’s    counsel’s         firm   does    have   more    than   one     attorney.
                                       -21-
Defendant’s counsel made the decision that not even one member

of the “team” could attend the hearing on 6 March 2013, and that

is their prerogative, but it does not entitle them to relief.

Defendant     Hospital    had   both     notice       of    the     hearing   and   an

opportunity to be heard; defendant Hospital just chose not to

exercise    the     opportunity.       The    fact    that        defendant   Hospital

chose   not    to   attend   without    filing       any     motion    requesting    a

continuance or other relief, and according to its own letter

instead chose to interview expert witnesses, in no way indicates

a due process violation on the part of the trial court.                             See

generally State v. Poole, ___ N.C. App. ___, ___, 745 S.E.2d 26,

34   (“‘The     fundamental     requirement          of     due     process   is    the

opportunity to be heard at a meaningful time and in a meaningful

manner.’      Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893,

902, 47 L.Ed. 2d 18, 32 (1976) (citation and quotation marks

omitted).”), disc. review denied and appeal dismissed, ___ N.C.

App. ___, 749 S.E.2d 885 (2013).              Accordingly, this argument is

overruled.

                                VII. Sanctions

     Lastly, defendant Hospital contends that “the trial court

erred when it awarded attorney’s fees on the plaintiff’s motions

to compel.”         (Original in all caps.)                In Order 2, the trial
                                        -22-
court stated, “Plaintiff is entitled to recover attorneys’ fees

and costs for bringing forward his Rule 37 Motion.                    The Court

reserves ruling on the amount for further hearings into the time

this matter required[.]”

            [A]n appeal from an award of attorneys’ fees
            may not be brought until the trial court has
            finally determined the amount to be awarded.
            For this Court to have jurisdiction over an
            appeal brought prior to that point, the
            appellant would have to show that waiting
            for   the   final   determination   on   the
            attorneys’   fees  issue   would  affect   a
            substantial right.

Triad Women's Ctr., P.A. v. Rogers, 207 N.C. App. 353, 358, 699

S.E.2d 657, 660-61 (2010).              As defendant Hospital failed to

argue a substantial right as to attorneys’ fees, we dismiss this

portion of defendant Hospital’s appeal as interlocutory.                      See

id.

      We further note that pursuant to North Carolina Rule of

Appellate    Procedure    34        plaintiff    has   also   filed   a   motion

requesting   this   Court      to    sanction    defendant    Hospital    because

defendant Hospital’s appeal was frivolous.                See N.C.R. App. P.

34. We agree that most of defendant Hospital’s arguments lack

legal or factual basis and believe it is appropriate to sanction

defendant    Hospital    the    cost     of     plaintiff’s   attorney’s     fees

regarding this appeal.
                             -23-
         [W]e therefore tax      [defendant Hospital]
         personally with the costs of this appeal and
         the attorney fees incurred in this appeal by
         [plaintiff]. Pursuant to Rule 34(c), we
         remand this case to the trial court for a
         determination of the reasonable amount of
         attorney fees incurred by [plaintiff] in
         responding to this appeal.

Ritter v. Ritter, 176 N.C. App. 181, 185, 625 S.E.2d 886, 888-

89, disc. review denied and appeal dismissed, 360 N.C. 483, 632

S.E.2d 490 (2006).

                     VIII.     Conclusion

    For the foregoing reasons, we affirm and remand in part.

    AFFIRMED and REMANDED in part.

    Judges HUNTER, JR., Robert N. and DILLON concur.
