Fields v. McMahan

722 S.E.2d 793, 218 N.C. App. 417, 2012 N.C. App. LEXIS 199
CourtCourt of Appeals of North Carolina
DecidedFebruary 7, 2012
DocketNo. COA11-1043
StatusPublished
Cited by2 cases

This text of 722 S.E.2d 793 (Fields v. McMahan) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fields v. McMahan, 722 S.E.2d 793, 218 N.C. App. 417, 2012 N.C. App. LEXIS 199 (N.C. Ct. App. 2012).

Opinion

BRYANT, Judge.

Because plaintiff raises on appeal a constitutional argument which has not been presented and ruled upon by the trial court, we dismiss the appeal.

On 28 September 2010, plaintiff Wendy Fields, filed a complaint against defendant Cynthia McMahan in Chatham County Superior Court alleging breach of contract, breach of partnership, actual fraudulent inducement to contract, constructive fraudulent inducement to contract, tortious interference with existing contract, tortious interference with prospective economic advantage, libel, slander of title, unfair and deceptive trade practices, and punitive damages. On 10 November 2010, defendant answered plaintiff’s complaint and counterclaimed for breach of contract, breach of fiduciary duty, and statutory conspiracy. Defendant voluntarily dismissed the counterclaim for statutory conspiracy on 3 February 2011.

The subject of the action is a show dog, a German Shepard named Bill von der Fürstenau (hereinafter “Bill”). Bill was bred and resides in Germany. His pedigree — his title document which contains his formal lineage — was issued under the authority of the Verein fur Deutsche Schaferhunde (SV) E.V. (hereinafter “SV”). Prior to this [418]*418action, Bill was owned in part by German national Lothar Vorg. In her complaint, plaintiff asserted that under SV rules, a German Shepard owned in whole or in part by a German national could not breed through artificial insemination; however, if Bill was owned by American citizens, plaintiff asserted, he could be registered with the American Kennel Club (AKC) and utilize artificial insemination.

Plaintiff asserted that Bill had been world ranked since 2009 and, after having earned the “Sieger” title “VA1” at the 2009 North American Sieger Show — a national conformation show of the Working Dog Association of the German Shepard Dog Club of America, Bill held the ranking of #1 adult male German Shepard Dog in the United States.

In September 2009, plaintiff purchased a one-half interest in Bill for $41,500.00. Plaintiff co-owned Bill with Vorg who maintained physical custody of Bill. Within a week of plaintiffs purchase, Vorg sold his one-half interest in Bill to defendant. Pursuant to the purchase agreements entered into by both plaintiff and defendant, Vorg surrendered physical custody of Bill to Jochen Janz, “a German national and internationally recognized breeder, trainer and handler . . . .”

Plaintiff asserted that after defendant’s acquisition of interest, defendant refused to pay for any of Bill’s expenses leaving plaintiff to pay for all of Bill’s non-custodial costs, including, international air travel expenses, show entry fees, sperm supplement, and semen collection fees. Moreover, plaintiff asserts “Defendant had the affirmative obligation to convey her title and interest in Bill to Jochen Janz” in the spring of 2010 but failed to do so.

On 24 May 2011, defendant filed Defendant’s Motion to Compel Discovery specifically requesting that plaintiff produce all correspondence to and from Janz beginning 1 January 2009 through 24 May 2011, as well as, all cell phone records and credit card receipts for the month of June 2010.

On 1 June 2011, an order was entered in Chatham County Superior Court allowing “Defendant’s Motion to Compel Discovery as it relates to Request for Production numbers 3 and 10[.]” From entry of this order, plaintiff appeals.

On appeal, plaintiff questions whether the trial court erred in allowing defendant’s motion to compel discovery. Plaintiff argues that the trial court’s order compelling compliance with defendant’s discovery requests infringes upon her privilege against self-incrimination [419]*419protected by the Fifth Amendment to the United States Constitution and affects a substantial right, making the order appealable. We hold the argument plaintiff raises is not properly before us.

“[0]rdinarily, discovery orders are interlocutory and are not subject to immediate appeal. Orders that are interlocutory are subject to immediate appeal when they .affect a substantial right of a party.” Lowd v. Reynolds,_N.C. App._,_, 695 S.E.2d 479, 482 (2010) (citation omitted).

[T]he right against self-incrimination is a very substantial right, indeed, protected by both the United States and North Carolina Constitutions, and if some of the interrogatories are incriminating, as [plaintiff] contends, and [she] is nevertheless compelled to answer them now [her] constitutional right could be lost beyond recall and [her] appeal at the end of the trial would be of no value.

Shaw v. Williamson, 75 N.C. App. 604, 606-07, 331 S.E.2d 203, 204 (1985) (citation omitted). However, “[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) (citations omitted).

On 24 May 2011, defendant filed a motion to compel discovery seeking a court order compelling plaintiff to respond to interrogatories and requests for production of documents. Defendant stated that she served her First Set of Interrogatories and Requests for Production of Documents upon plaintiff on 29 December 2010, and, on 10 March 2011, plaintiff provided “deficient” responses.

In defendant’s motion to compel discovery, defendant identified requests No. 3 and No. 10 as receiving deficient responses.

3. Identify and produce any and all correspondence, including all email communications, to or from Jochen Janz, for the period beginning January 1, 2009, and continuing to the present. This requests specifically includes e-mail to or from [plaintiff’s] email account....
10. Please provide all cell phone records and credit card receipts for the month of June 2010.

[420]*420In support of her motion, defendant made the following arguments:

These Requests [sic] are relevant and would likely lead to admissible evidence for several reasons:

a. Plaintiff has alleged breach of contract by Defendant, but Jochez Janz is a central party to the contract and has a financial interest in the lawsuit. Janz is the individual who induced both Plaintiff and Defendant to enter the contract, so Plaintiffs communications with Janz would be very relevant in this action.
b. It also appears from discovery that Jochen Janz fraudulently induced Ms. McMahan into purchasing her half interest in Bill without disclosing to her the personal relationship he had with the Plaintiff.
c. In addition, the email and cell phone records may reveal improper motive on Plaintiffs part in pursuing her claims against defendant. Specifically, Jochen Janz, a German citizen, fled the country after warrants were issued in Chatham County for charges arising out of his physical assault on Defendant. With the warrants outstanding, Janz cannot return to the United States. It appears that Plaintiff has a personal relationship with Janz, and that one of her motives in pursuing this action is to coerce Defendant into seeking a dismissal of the criminal charges.
d.

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Cite This Page — Counsel Stack

Bluebook (online)
722 S.E.2d 793, 218 N.C. App. 417, 2012 N.C. App. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fields-v-mcmahan-ncctapp-2012.