Romig v. Jefferson-Pilot Life Insurance

513 S.E.2d 598, 132 N.C. App. 682, 1999 N.C. App. LEXIS 285
CourtCourt of Appeals of North Carolina
DecidedApril 6, 1999
DocketCOA97-1303
StatusPublished
Cited by18 cases

This text of 513 S.E.2d 598 (Romig v. Jefferson-Pilot Life Insurance) 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
Romig v. Jefferson-Pilot Life Insurance, 513 S.E.2d 598, 132 N.C. App. 682, 1999 N.C. App. LEXIS 285 (N.C. Ct. App. 1999).

Opinions

TIMMONS-GOODSON, Judge.

Jefferson-Pilot Life Insurance Company (“defendant”) appeals from an order of the trial court permitting Veronica D. Romig (“plaintiff’) to conduct further discovery before the court determined whether to grant class certification. For the reasons hereinafter stated, we dismiss this appeal as interlocutory.

Plaintiff filed a class action complaint against defendant on 6 November 1995 alleging that defendant engaged in a scheme or common course of conduct to use false and misleading sales materials and presentations in the sale of its interest sensitive life insurance policies. Specifically, plaintiff averred that defendant, through its agents, misrepresented the nature of its policies by stating that the premiums would “vanish” after a fixed number of years due to the accumulation of interest or dividends payable on the policies.

On 16 January 1996, the parties filed a Joint Motion for Extension of Time, wherein defendant requested additional time to respond to plaintiffs complaint, and the parties agreed to limit discovery to the issue of class certification until the issue was finally decided. The trial court granted the motion and entered a Scheduling Order, which set the time for completing discovery and submitting briefs on the class certification issue. Plaintiff thereafter served defendant with her First Request for Production of Documents Limited to the Issue of Class Certification. Defendant provided timely responses to plaintiff’s requests, producing nearly 10,000 pages of documents.

On 23 January 1996, plaintiff filed a Motion for an Action Maintainable as a Class Action, which she subsequently amended on 3 October 1996. The trial court held a hearing regarding plaintiff’s motion on 20 December 1996 and issued a written ruling on 10 February 1997 finding that plaintiff had failed to prove the existence of a “class” as required under North Carolina law. In particular, the court found as follows:

[684]*684The plaintiff has failed to establish, to the satisfaction of this trial court, the actual existence of a class. She has not established as a threshold matter that defendant Jefferson Pilot’s alleged misrepresentations were either standardized representations uniformly made to all putative class members or were representations made as part of a common scheme or course of conduct orchestrated by the defendant and carried out by its agents.

This ruling also directed defendant’s counsel to draft a proposed order denying class certification.

On 26 February 1997, before a written order denying class certification was entered, plaintiff filed a Motion for Reconsideration of the Court’s Ruling Denying Class Certification and a Motion for Stay of Entry of an Order Denying Class Certification. By her motion for reconsideration, plaintiff requested the trial court to vacate its ruling, pursuant to Rule 60(b)(6) of the North Carolina Rules of Civil Procedure, and to allow plaintiff an opportunity to conduct additional discovery. The trial court granted plaintiff’s motion to stay and ordered the parties to submit briefs addressing plaintiff’s motion for reconsideration.

The trial court held a hearing on the motion for reconsideration on 26 March 1997. At the hearing, the parties were again afforded an opportunity to argue the issue of class certification. On 14 July 1997, after “review[ing] all of the submissions made by the parties to date,” the trial court entered an Order Permitting Further Discovery Before Determination of Class Certification. The order stated that “[t]he plaintiff [shall] have 125 days from the date of the filing of this order to conduct full discovery, in a manner and sequence to be chosen by the plaintiff, regarding” matters specifically listed by the trial court. The order then set out specific materials which “plaintiff [was] authorized to seek and be provided with.” These materials were consistent with those items sought by plaintiff in the request for additional discovery stated within her motion for reconsideration. From the order permitting further discovery, defendant appeals.

Plaintiff filed a motion to dismiss defendant’s appeal as interlocutory. In response, defendant petitioned this Court for writ of certiorari. We will address these matters simultaneously.

“An order is interlocutory if it does not determine the entire controversy between all of the parties.” Abe v. Westview Capital, 130 N.C. App. 332, 334, 502 S.E.2d 879, 881 (1998) (citing Veazey v. [685]*685Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381, reh’g denied, 232 N.C. 744, 59 S.E.2d 429 (1950)). As a general rule, interlocutory orders are not immediately appealable. First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998). The policy behind this rule is to “ ‘avoidf] fragmentary, premature and unnecessary appeals’ ” by allowing the trial court to completely and finally adjudicate the case before the appellate courts review it. Florek v. Borror Realty Co., 129 N.C. App. 832, 836, 501 S.E.2d 107, 109 (1998) (quoting Jarrell v. Coastal Emergency Services of the Carolinas, 121 N.C. App. 198, 201, 464 S.E.2d 720, 722-23 (1995)).

Nevertheless, a party may appeal an interlocutory order in two instances. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). First, a party may appeal where the trial court enters a final judgment with respect to one or more, but less than all of the parties or claims, and the court certifies the judgment as immediately appealable under Rule 54(b) of the North Carolina Rules of Civil Procedure. Abe, 130 N.C. App. at 334, 502 S.E.2d at 881 (quoting Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253). A party may also appeal an interlocutory order “if it affects a substantial right and will work injury to the appellant^ if not corrected before final judgment.” Perry v. Cullipher, 69 N.C. App. 761, 762, 318 S.E.2d 354, 356 (1984). In either instance, the burden is on the appellant “to present appropriate grounds for this Court’s acceptance of an interlocutory appeal and our Court’s responsibility to review those grounds.” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253.

Discovery orders, such as that from which the present appeal stems, are interlocutory and, thus, are ordinarily not appealable. Gibbons v. CIT Group/Sales Financing, 101 N.C. App. 502, 505, 400 S.E.2d 104, 106 (1991). Our courts, however, have recognized a narrow exception to the rule against direct appeals from discovery orders where such orders include a finding of contempt or other sanctions. See Sharpe v. Worland, 132 N.C. App.

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Romig v. Jefferson-Pilot Life Insurance
513 S.E.2d 598 (Court of Appeals of North Carolina, 1999)

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Bluebook (online)
513 S.E.2d 598, 132 N.C. App. 682, 1999 N.C. App. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romig-v-jefferson-pilot-life-insurance-ncctapp-1999.