IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-103
Filed 3 December 2024
Guilford County, No. 23CVS3121
ALBERT LOPEZ and JOY LOPEZ, Plaintiffs,
v.
ADELA ARNULFO-PLATA, Defendant.
Appeal by plaintiffs from order entered 8 November 2023 by Judge Lora C.
Cubbage in Guilford County Superior Court. Heard in the Court of Appeals 12 June
2024.
McDonald Wright, LLP, by David W. McDonald, and Culbertson & Associates, by K. E. Krispen Culbertson, for plaintiffs-appellants.
A.G. Linett & Associates, PA, by Adam G. Linett, for defendant-appellee.
GORE, Judge.
Plaintiffs Albert Lopez and Joy Lopez appeal from an interlocutory discovery
order entered 8 November 2023 (hereinafter, “Order”), which granted defendant
Adela Arnulfo-Plata’s motion to compel and denied plaintiffs’ motion for a protective
order. Upon review, we dismiss plaintiffs’ interlocutory appeal for lack of jurisdiction.
Plaintiffs initiated this action against defendant seeking damages for both
plaintiffs’ emotional distress, severe emotional distress, anxiety, depression,
sleeplessness, and other symptoms of emotional distress allegedly caused by
defendant’s claim of sexual abuse made against Mr. Lopez, which resulted in his LOPEZ V. ARNULFO-PLATA
Opinion of the Court
detention for about one month before the charges were dismissed by a prosecutor in
the State of Florida. Mrs. Lopez also included a cause of action in her complaint for
loss of consortium—seeking damages for the loss of service, society, companionship,
sexual gratification, and affection of her husband.
Defendant alleged in her second amended answer and counterclaims that she
was sexually abused by Mr. Lopez (her pastor) when she was twelve years old while
entrusted by her parents into plaintiffs’ care for a trip to Disney World in Orlando,
Florida, in July 2017. Defendant alleged in her counterclaims that plaintiffs knew
Mr. Lopez had been accused of child sexual abuse by a different female victim before
the trip to Florida in July 2017, but that plaintiffs did not warn her or her parents of
this before taking her to Florida.
The parties engaged in various motions and discovery in this matter, which led
to defendant filing a motion to compel on 18 October 2023. This matter came on for
hearing on 28 October 2023, and the trial court entered a written Order dated 8
November 2023 compelling plaintiffs to provide discovery. The trial court ordered, as
is relevant here:
1. The plaintiffs’ motion for a protective order to limit the plaintiffs’ production of medical records to solely records involving emotional distress damages is denied.
2. The defendant’s motion to compel the production of five (5) years of the plaintiffs’ medical records prior to the date of filing the complaint is hereby allowed.
3. The defendant’s motion to compel the production of
-2- LOPEZ V. ARNULFO-PLATA
plaintiff Albert Lopez’s criminal files is also hereby allowed.
Plaintiffs timely filed written notice of appeal from the trial court’s Order later that
same day.
Defendant filed a Motion to Dismiss plaintiffs’ appeal as interlocutory
pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure. Upon
review, we determine that plaintiffs’ appeal must be dismissed for lack of
interlocutory jurisdiction because plaintiffs have not shown, in their statement of the
grounds for appellate review, that the trial court’s Order affects a substantial right
that will be lost absent immediate review.
As a preliminary matter, defendant asserts plaintiffs’ notice of appeal is
defective, and thus, fails to vest this Court with appellate jurisdiction. We disagree.
Plaintiffs’ timely filed notice of appeal meets all the technical requirements of Rule
3(d) of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 3(d)
(“Content of Notice of Appeal.”). This argument is overruled.
Defendant also argues plaintiffs’ failure to seek or obtain Rule 54(b)
certification as a basis for their interlocutory appeal is grounds for dismissal. We
disagree. “Rule 54(b) certification is effective to certify an otherwise interlocutory
appeal only if the trial court has entered a final judgment with regard to a party or a
claim in a case which involves multiple parties or multiple claims.” CBP Res., Inc. v.
Mountaire Farms, Inc., 134 N.C. App. 169, 171 (1999). Rule 54(b) does not apply in
-3- LOPEZ V. ARNULFO-PLATA
this case. And in any event, interlocutory orders “may properly be appealed,
regardless of lack of certification under Rule 54(b), if they affect a ‘substantial right.’”
Estrada v. Jaques, 70 N.C. App. 627, 639 (1984) (citations omitted). Accordingly,
defendant’s Rule 54(b) argument lacks merit.
We now resolve defendant’s remaining arguments for dismissal by assessing
whether plaintiffs, as the parties taking appeal, have demonstrated that the Order
appealed affects a substantial right and is subject to immediate appellate review. We
determine that plaintiffs have not met their burden.
Plaintiffs acknowledge the interlocutory nature of the discovery order from
which they appeal but imply this Court may properly exercise jurisdiction because
the trial court’s Order affects a substantial right. We disagree.
“[I]n appeals from interlocutory orders, the North Carolina Rules of Appellate
Procedure require that the appellant’s brief contain a ‘statement of the grounds for
appellate review,’ which must allege ‘sufficient facts and argument to support
appellate review on the ground that the challenged order affects a substantial right.’”
Hanesbrands Inc. v. Fowler, 369 N.C. 216, 219 (2016) (quoting N.C.R. App. P.
28(b)(4)). “Whether a particular ruling affects a substantial right must be determined
on a case-by-case basis.” Doe v. City of Charlotte, 273 N.C. App. 10, 22 (2020) (cleaned
up).
Consequently, outside of a few exceptions such as sovereign immunity, the appellant cannot rely on citation to precedent to show that an order affects a substantial right.
-4- LOPEZ V. ARNULFO-PLATA
Instead, the appellant must explain, in the statement of the grounds for appellate review, why the facts of that particular case demonstrate that the challenged order affects a substantial right.
Id. (cleaned up). “Importantly, this Court will not construct arguments for or find
support for appellant’s right to appeal from an interlocutory order on our own
initiative[;] [t]hat burden falls solely on the appellant.” Denney v. Wardson Constr.,
LLC, 264 N.C. App. 15, 17 (2019) (cleaned up). “[I]f the appellant’s opening brief fails
to explain why the challenged order affects a substantial right, we must dismiss the
appeal for lack of appellate jurisdiction.” Id.
Here, plaintiffs assert in their “statement of the grounds for review” that the
Order appealed compels plaintiffs to produce “two classes of information which are
privileged[:]” (i) “medical records[,]” which they allege are “unrelated to plaintiffs’
emotional distress” claims; and (ii) “all documents received” by plaintiff Mr. Lopez’s
“criminal counsel from the District Attorney in discovery . . . during the pendency of
criminal proceedings” against Mr. Lopez. Plaintiffs do not specify which statutory
privilege applies, to which records, for what reason—nor do they otherwise offer any
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-103
Filed 3 December 2024
Guilford County, No. 23CVS3121
ALBERT LOPEZ and JOY LOPEZ, Plaintiffs,
v.
ADELA ARNULFO-PLATA, Defendant.
Appeal by plaintiffs from order entered 8 November 2023 by Judge Lora C.
Cubbage in Guilford County Superior Court. Heard in the Court of Appeals 12 June
2024.
McDonald Wright, LLP, by David W. McDonald, and Culbertson & Associates, by K. E. Krispen Culbertson, for plaintiffs-appellants.
A.G. Linett & Associates, PA, by Adam G. Linett, for defendant-appellee.
GORE, Judge.
Plaintiffs Albert Lopez and Joy Lopez appeal from an interlocutory discovery
order entered 8 November 2023 (hereinafter, “Order”), which granted defendant
Adela Arnulfo-Plata’s motion to compel and denied plaintiffs’ motion for a protective
order. Upon review, we dismiss plaintiffs’ interlocutory appeal for lack of jurisdiction.
Plaintiffs initiated this action against defendant seeking damages for both
plaintiffs’ emotional distress, severe emotional distress, anxiety, depression,
sleeplessness, and other symptoms of emotional distress allegedly caused by
defendant’s claim of sexual abuse made against Mr. Lopez, which resulted in his LOPEZ V. ARNULFO-PLATA
Opinion of the Court
detention for about one month before the charges were dismissed by a prosecutor in
the State of Florida. Mrs. Lopez also included a cause of action in her complaint for
loss of consortium—seeking damages for the loss of service, society, companionship,
sexual gratification, and affection of her husband.
Defendant alleged in her second amended answer and counterclaims that she
was sexually abused by Mr. Lopez (her pastor) when she was twelve years old while
entrusted by her parents into plaintiffs’ care for a trip to Disney World in Orlando,
Florida, in July 2017. Defendant alleged in her counterclaims that plaintiffs knew
Mr. Lopez had been accused of child sexual abuse by a different female victim before
the trip to Florida in July 2017, but that plaintiffs did not warn her or her parents of
this before taking her to Florida.
The parties engaged in various motions and discovery in this matter, which led
to defendant filing a motion to compel on 18 October 2023. This matter came on for
hearing on 28 October 2023, and the trial court entered a written Order dated 8
November 2023 compelling plaintiffs to provide discovery. The trial court ordered, as
is relevant here:
1. The plaintiffs’ motion for a protective order to limit the plaintiffs’ production of medical records to solely records involving emotional distress damages is denied.
2. The defendant’s motion to compel the production of five (5) years of the plaintiffs’ medical records prior to the date of filing the complaint is hereby allowed.
3. The defendant’s motion to compel the production of
-2- LOPEZ V. ARNULFO-PLATA
plaintiff Albert Lopez’s criminal files is also hereby allowed.
Plaintiffs timely filed written notice of appeal from the trial court’s Order later that
same day.
Defendant filed a Motion to Dismiss plaintiffs’ appeal as interlocutory
pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure. Upon
review, we determine that plaintiffs’ appeal must be dismissed for lack of
interlocutory jurisdiction because plaintiffs have not shown, in their statement of the
grounds for appellate review, that the trial court’s Order affects a substantial right
that will be lost absent immediate review.
As a preliminary matter, defendant asserts plaintiffs’ notice of appeal is
defective, and thus, fails to vest this Court with appellate jurisdiction. We disagree.
Plaintiffs’ timely filed notice of appeal meets all the technical requirements of Rule
3(d) of the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 3(d)
(“Content of Notice of Appeal.”). This argument is overruled.
Defendant also argues plaintiffs’ failure to seek or obtain Rule 54(b)
certification as a basis for their interlocutory appeal is grounds for dismissal. We
disagree. “Rule 54(b) certification is effective to certify an otherwise interlocutory
appeal only if the trial court has entered a final judgment with regard to a party or a
claim in a case which involves multiple parties or multiple claims.” CBP Res., Inc. v.
Mountaire Farms, Inc., 134 N.C. App. 169, 171 (1999). Rule 54(b) does not apply in
-3- LOPEZ V. ARNULFO-PLATA
this case. And in any event, interlocutory orders “may properly be appealed,
regardless of lack of certification under Rule 54(b), if they affect a ‘substantial right.’”
Estrada v. Jaques, 70 N.C. App. 627, 639 (1984) (citations omitted). Accordingly,
defendant’s Rule 54(b) argument lacks merit.
We now resolve defendant’s remaining arguments for dismissal by assessing
whether plaintiffs, as the parties taking appeal, have demonstrated that the Order
appealed affects a substantial right and is subject to immediate appellate review. We
determine that plaintiffs have not met their burden.
Plaintiffs acknowledge the interlocutory nature of the discovery order from
which they appeal but imply this Court may properly exercise jurisdiction because
the trial court’s Order affects a substantial right. We disagree.
“[I]n appeals from interlocutory orders, the North Carolina Rules of Appellate
Procedure require that the appellant’s brief contain a ‘statement of the grounds for
appellate review,’ which must allege ‘sufficient facts and argument to support
appellate review on the ground that the challenged order affects a substantial right.’”
Hanesbrands Inc. v. Fowler, 369 N.C. 216, 219 (2016) (quoting N.C.R. App. P.
28(b)(4)). “Whether a particular ruling affects a substantial right must be determined
on a case-by-case basis.” Doe v. City of Charlotte, 273 N.C. App. 10, 22 (2020) (cleaned
up).
Consequently, outside of a few exceptions such as sovereign immunity, the appellant cannot rely on citation to precedent to show that an order affects a substantial right.
-4- LOPEZ V. ARNULFO-PLATA
Instead, the appellant must explain, in the statement of the grounds for appellate review, why the facts of that particular case demonstrate that the challenged order affects a substantial right.
Id. (cleaned up). “Importantly, this Court will not construct arguments for or find
support for appellant’s right to appeal from an interlocutory order on our own
initiative[;] [t]hat burden falls solely on the appellant.” Denney v. Wardson Constr.,
LLC, 264 N.C. App. 15, 17 (2019) (cleaned up). “[I]f the appellant’s opening brief fails
to explain why the challenged order affects a substantial right, we must dismiss the
appeal for lack of appellate jurisdiction.” Id.
Here, plaintiffs assert in their “statement of the grounds for review” that the
Order appealed compels plaintiffs to produce “two classes of information which are
privileged[:]” (i) “medical records[,]” which they allege are “unrelated to plaintiffs’
emotional distress” claims; and (ii) “all documents received” by plaintiff Mr. Lopez’s
“criminal counsel from the District Attorney in discovery . . . during the pendency of
criminal proceedings” against Mr. Lopez. Plaintiffs do not specify which statutory
privilege applies, to which records, for what reason—nor do they otherwise offer any
“clear and articulable demonstration of the factual basis underlying [their] asserted
substantial right . . . .” Mecklenburg Roofing, Inc. v. Antall, 895 S.E.2d 877, 880 (N.C.
Ct. App. 2023). While physician-patient privilege, attorney-client privilege, and
work-product doctrine may be implied here, we emphasize that plaintiffs “ask[ ] us to
assume—for the sake of our jurisdiction, no less—that the barebones assertions in its
-5- LOPEZ V. ARNULFO-PLATA
statement of the grounds for appellate review are self-evident and supported by the
record[.]” Id. at 882.
“An order compelling discovery is interlocutory in nature and is usually not
immediately appealable because such orders generally do not affect a substantial
right.” Sessions v. Sloane, 248 N.C. App. 370, 380 (2016) (citing Sharpe v. Worland,
351 N.C. 159, 163 (1999)). 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 . . . .” Sharpe, 351 N.C. at 166 (emphasis added).
This Court has previously applied “the reasoning of Sharpe to include attorney-client
privilege, the work product doctrine,” Sessions, 248 N.C. App. at 380, and physician-
patient privilege, Midkiff v. Compton, 204 N.C. App. 21, 24 (2010). We do not,
however, read Sharpe “as opening the door to appellate review of every contested
discovery order in which [a statutory] privilege is simply asserted, without more.”
Stevenson v. Joyner, 148 N.C. App. 261, 264 (2002).
“If the assertion of privilege is not ‘frivolous or insubstantial’ then a substantial
right is affected and the order compelling discovery is immediately appealable.”
Sessions, 248 N.C. App. at 381. “Blanket assertions that production is not required
due to a privilege or immunity are insufficient to demonstrate the existence of a
substantial right.” Crosmun v. Trs. of Fayetteville Tech. Cmty. Coll., 266 N.C. App.
424, 433 (2019) (citation omitted); see also K2 Asia Ventures v. Trota, 215 N.C. App.
-6- LOPEZ V. ARNULFO-PLATA
443, 447 (2011). “Although objections made and established on a document-by-
document basis are sufficient to assert a privilege, they are not the exclusive means
of demonstrating the loss of a substantial right and the appealable nature of a
discovery order.” Crosmun, 266 N.C. App. at 433 (cleaned up). Ultimately, “[w]e base
our determination on whether [plaintiffs] have legitimately asserted the loss of a
privilege or immunity absent immediate appeal.” Id. Plaintiffs “must present more
than a bare assertion that the order affects a substantial right; they must
demonstrate why the order affects a substantial right.” Hoke Cnty. Bd. of Educ. v.
State, 198 N.C. App. 274, 277–78 (2009).
Here, plaintiffs have not legitimately asserted the loss of statutory privilege
absent immediate appeal. Plaintiffs “[i]mproperly and disproportionately rel[y] upon
vague, conclusory statements and prior cases to demonstrate that the challenged
order affects a substantial right. Such assertions are ineffective to invoke our
appellate jurisdiction, absent the requisite factual or evidentiary support.”
Mecklenburg Roofing, 895 S.E.2d at 880–81. Plaintiffs shift their burden to this
Court—a task that we refuse. See Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.
App. 377, 380 (1994) (“It is not the duty of this Court to construct arguments for or
find support for appellant’s right to appeal from an interlocutory order[.]”). Plaintiffs’
“misguided fixation on existing caselaw—at the expense of any context that might
aid in our consideration of [their] interlocutory appeal—is compounded by another
fatal shortcoming: [plaintiffs’] failure to demonstrate that the [O]rder will work injury
-7- LOPEZ V. ARNULFO-PLATA
to [plaintiffs] if not corrected before appeal from final judgment.” Mecklenburg
Roofing, 895 S.E.2d at 880 (cleaned up).
We dismiss plaintiffs’ interlocutory appeal for lack of jurisdiction. Plaintiffs’
statement of the grounds for appellate review is insufficient to establish that the
challenged order affects a substantial right.
DISMISSED.
Chief Judge DILLON and Judge THOMPSON concur.
-8-