IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-928
Filed 4 June 2024
Nash County, No. 21CVS1955
ROBERT WHITE, Plaintiff,
v.
BRAVE QUEST CORP. and ELOGHOMES.COM, Defendants.
Appeal by plaintiff from order entered 18 April 2023 by Judge Brenda G.
Branch in Nash County Superior Court. Heard in the Court of Appeals 16 April 2024.
Walker Kiger, PLLC, by David Steven Walker, II, for plaintiff-appellant.
Teague Campbell Dennis & Gorham, by Daniel T. Strong, for defendants- appellees.
FLOOD, Judge.
Plaintiff Robert White appeals from the trial court’s order compelling discovery
and an order imposing sanctions against him for failure to comply with the discovery
order. On appeal, Plaintiff argues the trial court erred in granting Defendants Brave
Quest Corp. and eloghomes.com’s motion to compel discovery and ordering sanctions
against Plaintiff. Because Plaintiff did not file a timely notice of appeal as to the
motion to compel, and failed to adequately allege the sanctions order affected a
substantial right, we conclude Plaintiff’s appeal is not properly before this Court.
I. Factual and Procedural Background
Defendant Brave Quest Corp. is a North Carolina business that operates a WHITE V. BRAVE QUEST CORP.
Opinion of the Court
website with the domain name, “eloghomes.com.” Defendants are in the business of
selling and manufacturing log homes and supplies. In January 2021, Plaintiff
entered into an agreement wherein Defendants would send log home building
materials to Plaintiff in Arizona. The parties agreed that 10 July 2021 would be the
delivery date. On 24 January 2021, Plaintiff, in contemplation of the agreement, paid
Defendants $32,678.69. On 28 April 2021, Plaintiff paid an additional $51,852.33 to
Defendants, bringing Plaintiff’s total payment amount to $84,531.02. Any remaining
balance was to be paid upon delivery of the building materials.
Defendants provided Plaintiff with preliminary blueprints for his review, and
Plaintiff requested design changes. Defendants made the requested changes and sent
the revised blueprints to Plaintiff, but Plaintiff did not respond. Plaintiff failed to
approve the blueprints and make arrangements for the delivery of the log home.
Defendants offered to extend the 10 July 2021 deadline and preserve the originally
agreed upon price. On 29 July 2021, Plaintiff responded to Defendants’ offer and
indicated he would “have to cancel [his] purchase and perhaps make the purchase
later on.” On 30 July 2021, Plaintiff wrote to Defendants again and “demanded” they
reduce the agreed upon price by $8,866.00. Defendants did not accept Plaintiff’s
“demand,” but they did offer to give Plaintiff additional time to make additional
payments on the outstanding amount owed or change his order to a less expensive
design. Plaintiff responded with a threat of litigation.
On 28 December 2021, Plaintiff filed a complaint alleging Defendants
-2- WHITE V. BRAVE QUEST CORP.
breached the contract that they had entered into with Plaintiff and committed Unfair
and Deceptive Trade Practices (“UDTP”).
On 25 March 2022, Defendants moved to dismiss Plaintiff’s UDTP claim for
failure to state a claim upon which relief can be granted in violation of Rule 12(b)(6)
of the North Carolina Rules of Civil Procedure.
On 6 January 2023, Defendants filed a motion for partial summary judgment
on the UDTP claim, and a motion to compel discovery. In the motion to compel
discovery, Defendants requested production of Plaintiff’s medical records for the
period of the parties’ communication, as Plaintiff “ha[d] indicated to Defendants that
his failure to respond was due to health problems.” It is unclear from the Record on
appeal when Plaintiff made these indications to Defendants regarding his health.
On 17 January 2023, a hearing was held regarding Defendants’ various
motions. The trial court, Judge George Hicks presiding, entered an order on 20
January 2023 denying the motion to dismiss that Defendants’ had asserted in their
answer, denying Defendants’ separately filed motion for partial summary judgment,
and granting Defendants’ motion to compel discovery. The trial court found that,
“from the information provided, [] [P]laintiff’s medical history is relevant to the
matters before the [c]ourt.” Judge Hicks’ order stated that, if Plaintiff desired to
testify to his medical condition regarding his failure to respond, “such testimony or
reference would operate as an implied waiver of the patient[-]physician privilege.”
Thus, Judge Hicks ordered Plaintiff to either (1) provide Defendants’ counsel a copy
-3- WHITE V. BRAVE QUEST CORP.
of all Plaintiff’s medical records during the relevant time period or (2) stipulate that
Plaintiff’s medical condition will not be brought up during trial.
Plaintiff chose not to stipulate and did not comply with Judge Hicks’ order that
he produce all medical records during the relevant time, but instead provided two
medical reports from the Mayo Clinic that were each two pages in length, with one
“clearly missing at least one page.” The first medical report submitted by Plaintiff
was from 26 February 2021 and referred to an order for a CT scan and a follow-up
visit, but there was not a report about the scan or the follow-up visit. The second
report indicated Plaintiff had an appointment on 28 July 2021. The 28 July 2021
report also referenced a “recent evaluation” made by another physician, but that
evaluation was likewise not included in the medical reports submitted to Defendants.
Defendants filed a motion for discovery sanctions, arguing Plaintiff failed to
comply with Judge Hicks’ order that Plaintiff provide “his medical records for all
providers from January 1, 2021 until December 15, 2021.” Defendants also suggested
the medical reports Plaintiff did provide indicated that he had made false statements
about his medical condition, and Defendants needed his complete medical records for
that time frame to verify whether Plaintiff’s statements were indeed false. Due to
these alleged false statements, Defendants requested that the trial court sanction
Plaintiff by dismissing his entire complaint.
The trial court, then with Judge Brenda Branch presiding, held a hearing on
17 April 2023 regarding the motion for sanctions. After hearing arguments from each
-4- WHITE V. BRAVE QUEST CORP.
party, the trial court stated it was “prepared for sanctions[,]” but it would “consider
something less than dismissal.” The trial court gave the parties an opportunity to
discuss an option that would include sanctions less severe than dismissal of the entire
case.
Just over an hour later, the parties came back into session, and Defendants’
counsel exclaimed that Plaintiff “won’t agree to anything, he won’t produce anything,
he won’t agree to any sanction whatsoever.”
Following the hearing, the trial court granted Defendants’ motion for
sanctions, finding, in relevant part:
3. Despite many efforts to have Plaintiff comply with the Discovery Order, Plaintiff remained steadfast in blatantly and obstinately violating the Discovery Order. ....
5.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-928
Filed 4 June 2024
Nash County, No. 21CVS1955
ROBERT WHITE, Plaintiff,
v.
BRAVE QUEST CORP. and ELOGHOMES.COM, Defendants.
Appeal by plaintiff from order entered 18 April 2023 by Judge Brenda G.
Branch in Nash County Superior Court. Heard in the Court of Appeals 16 April 2024.
Walker Kiger, PLLC, by David Steven Walker, II, for plaintiff-appellant.
Teague Campbell Dennis & Gorham, by Daniel T. Strong, for defendants- appellees.
FLOOD, Judge.
Plaintiff Robert White appeals from the trial court’s order compelling discovery
and an order imposing sanctions against him for failure to comply with the discovery
order. On appeal, Plaintiff argues the trial court erred in granting Defendants Brave
Quest Corp. and eloghomes.com’s motion to compel discovery and ordering sanctions
against Plaintiff. Because Plaintiff did not file a timely notice of appeal as to the
motion to compel, and failed to adequately allege the sanctions order affected a
substantial right, we conclude Plaintiff’s appeal is not properly before this Court.
I. Factual and Procedural Background
Defendant Brave Quest Corp. is a North Carolina business that operates a WHITE V. BRAVE QUEST CORP.
Opinion of the Court
website with the domain name, “eloghomes.com.” Defendants are in the business of
selling and manufacturing log homes and supplies. In January 2021, Plaintiff
entered into an agreement wherein Defendants would send log home building
materials to Plaintiff in Arizona. The parties agreed that 10 July 2021 would be the
delivery date. On 24 January 2021, Plaintiff, in contemplation of the agreement, paid
Defendants $32,678.69. On 28 April 2021, Plaintiff paid an additional $51,852.33 to
Defendants, bringing Plaintiff’s total payment amount to $84,531.02. Any remaining
balance was to be paid upon delivery of the building materials.
Defendants provided Plaintiff with preliminary blueprints for his review, and
Plaintiff requested design changes. Defendants made the requested changes and sent
the revised blueprints to Plaintiff, but Plaintiff did not respond. Plaintiff failed to
approve the blueprints and make arrangements for the delivery of the log home.
Defendants offered to extend the 10 July 2021 deadline and preserve the originally
agreed upon price. On 29 July 2021, Plaintiff responded to Defendants’ offer and
indicated he would “have to cancel [his] purchase and perhaps make the purchase
later on.” On 30 July 2021, Plaintiff wrote to Defendants again and “demanded” they
reduce the agreed upon price by $8,866.00. Defendants did not accept Plaintiff’s
“demand,” but they did offer to give Plaintiff additional time to make additional
payments on the outstanding amount owed or change his order to a less expensive
design. Plaintiff responded with a threat of litigation.
On 28 December 2021, Plaintiff filed a complaint alleging Defendants
-2- WHITE V. BRAVE QUEST CORP.
breached the contract that they had entered into with Plaintiff and committed Unfair
and Deceptive Trade Practices (“UDTP”).
On 25 March 2022, Defendants moved to dismiss Plaintiff’s UDTP claim for
failure to state a claim upon which relief can be granted in violation of Rule 12(b)(6)
of the North Carolina Rules of Civil Procedure.
On 6 January 2023, Defendants filed a motion for partial summary judgment
on the UDTP claim, and a motion to compel discovery. In the motion to compel
discovery, Defendants requested production of Plaintiff’s medical records for the
period of the parties’ communication, as Plaintiff “ha[d] indicated to Defendants that
his failure to respond was due to health problems.” It is unclear from the Record on
appeal when Plaintiff made these indications to Defendants regarding his health.
On 17 January 2023, a hearing was held regarding Defendants’ various
motions. The trial court, Judge George Hicks presiding, entered an order on 20
January 2023 denying the motion to dismiss that Defendants’ had asserted in their
answer, denying Defendants’ separately filed motion for partial summary judgment,
and granting Defendants’ motion to compel discovery. The trial court found that,
“from the information provided, [] [P]laintiff’s medical history is relevant to the
matters before the [c]ourt.” Judge Hicks’ order stated that, if Plaintiff desired to
testify to his medical condition regarding his failure to respond, “such testimony or
reference would operate as an implied waiver of the patient[-]physician privilege.”
Thus, Judge Hicks ordered Plaintiff to either (1) provide Defendants’ counsel a copy
-3- WHITE V. BRAVE QUEST CORP.
of all Plaintiff’s medical records during the relevant time period or (2) stipulate that
Plaintiff’s medical condition will not be brought up during trial.
Plaintiff chose not to stipulate and did not comply with Judge Hicks’ order that
he produce all medical records during the relevant time, but instead provided two
medical reports from the Mayo Clinic that were each two pages in length, with one
“clearly missing at least one page.” The first medical report submitted by Plaintiff
was from 26 February 2021 and referred to an order for a CT scan and a follow-up
visit, but there was not a report about the scan or the follow-up visit. The second
report indicated Plaintiff had an appointment on 28 July 2021. The 28 July 2021
report also referenced a “recent evaluation” made by another physician, but that
evaluation was likewise not included in the medical reports submitted to Defendants.
Defendants filed a motion for discovery sanctions, arguing Plaintiff failed to
comply with Judge Hicks’ order that Plaintiff provide “his medical records for all
providers from January 1, 2021 until December 15, 2021.” Defendants also suggested
the medical reports Plaintiff did provide indicated that he had made false statements
about his medical condition, and Defendants needed his complete medical records for
that time frame to verify whether Plaintiff’s statements were indeed false. Due to
these alleged false statements, Defendants requested that the trial court sanction
Plaintiff by dismissing his entire complaint.
The trial court, then with Judge Brenda Branch presiding, held a hearing on
17 April 2023 regarding the motion for sanctions. After hearing arguments from each
-4- WHITE V. BRAVE QUEST CORP.
party, the trial court stated it was “prepared for sanctions[,]” but it would “consider
something less than dismissal.” The trial court gave the parties an opportunity to
discuss an option that would include sanctions less severe than dismissal of the entire
case.
Just over an hour later, the parties came back into session, and Defendants’
counsel exclaimed that Plaintiff “won’t agree to anything, he won’t produce anything,
he won’t agree to any sanction whatsoever.”
Following the hearing, the trial court granted Defendants’ motion for
sanctions, finding, in relevant part:
3. Despite many efforts to have Plaintiff comply with the Discovery Order, Plaintiff remained steadfast in blatantly and obstinately violating the Discovery Order. ....
5. The facts as proven demonstrate that Plaintiff has made false statements about his health condition in an attempt to excuse his deliberate failure to respond to prodigious efforts by Defendants to comply with their contracts and to get Plaintiff to comply with their contracts. The documents that were withheld by Plaintiff in violation of the Discovery Order may be further evidence of those false statements and therefore appear to be relevant to Defendants’ case. The evidence appears to show that there is no factual basis for [the UDTP claim] in Plaintiff’s Verified Complaint and the failure of Plaintiff to comply with the Discovery Order impedes the ability of Defendants fully and fairly to defend against that Claim.
Judge Branch dismissed Plaintiff’s UDTP claim with prejudice and, ordered
“that it is proven that Plaintiff knowingly and intentionally made false statements
-5- WHITE V. BRAVE QUEST CORP.
about his health condition in an effort to excuse his deliberate failure to respond to
prodigious efforts by Defendants to comply with their contracts with Plaintiff[.]”
On 15 May 2023, Plaintiff filed a notice of appeal from Judge Hicks’ order
granting Defendants’ motion to compel discovery and from Judge Branch’s order
imposing sanctions.
II. Jurisdiction
Plaintiff asserts that, “while these orders are interlocutory, they affect a
substantial right of [] [P]laintiff, namely the physician[-]patient privilege.” The
physician-patient privilege, however, is irrelevant to the sanctions order, and
Plaintiff has not provided any case citation to support the proposition that a sanctions
order is interlocutory or that it affects a substantial right.
“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) (citation omitted). One exception to this general
rule exists “where a party asserts a privilege or immunity that directly relates to the
matter to be disclosed pursuant to the interlocutory discovery order and the assertion
of the privilege or immunity is not frivolous or insubstantial, the challenged order
affects a substantial right and is thus immediately appealable.” Berens v. Berens,
247 N.C. App. 12, 17, 785 S.E.2d 733, 738 (2016) (citation and internal quotation
marks omitted). A second exception exists when a discovery order is enforced by
-6- WHITE V. BRAVE QUEST CORP.
sanctions. See Feeassco, LLC v. Steel Network, Inc., 264 N.C. App. 327, 331–32, 826
S.E.2d 202, 206–07 (2019) (“Generally, a discovery order, including an order
compelling discovery, is not immediately appealable. However, when a discovery
order is enforced by sanctions . . . the order affects a substantial right and is
immediately appealable. The appeal tests the validity of both the discovery order and
the sanctions imposed.” (citations omitted)). Even though an interlocutory order may
be immediately appealable, however,
[t]he appellant bears the burden of demonstrating that the order is appealable despite its interlocutory nature. It is not the duty of this Court to construct arguments for or find support for an appellant’s right to appeal; the appellant must provide sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right.
Dewey Wright Well and Pump Co., Inc. v. Worlock, 243 N.C. App. 666, 669, 778 S.E.2d
98, 100–01 (2015) (citation omitted). “As a result, if the appellant’s opening brief fails
to explain why the challenged order affects a substantial right, we must dismiss the
appeal for lack of the appellate jurisdiction.” Bartels v. Franklin Operations, LLC,
288 N.C. App. 193, 198, 885 S.E.2d 357, 361 (2023) (citation omitted).
First, even if the discovery order impacted a physician-patient privilege and
was immediately appealable, Plaintiff did not file a notice of appeal until four months
after the order was entered, and his appeal was therefore untimely. See Watson v.
Watson, 288 N.C. App. 265, 267, 885 S.E.2d 858, 860 (2023) (“[W]hen a litigant elects
to appeal an interlocutory judgment . . . while other claims are pending, the litigant
-7- WHITE V. BRAVE QUEST CORP.
still must comply with Rule 3 of our Rules of Appellate Procedure, requiring that the
notice of appeal be filed within thirty days after entry of the judgment[.]”) (second
alteration in original); see also N.C.R. App. P. 3(c) (2023) (“In civil actions . . . a party
must file and serve a notice of appeal . . . within thirty days after entry of
judgment[.]”).
Second, Plaintiff did not meet his burden of showing the order imposing
sanctions was appealable because it affected a substantial right, and this Court will
not “construct arguments for or find support for” Plaintiff’s appeal. See Worlock, 243
N.C. App. at 669, 778 S.E.2d at 100.
Accordingly, as Plaintiff’s appeal of the discovery order was not filed within
thirty days of its entry, and he failed to show how the sanctions order was appealable
as an interlocutory order that affected a substantial right, we dismiss Plaintiff’s
appeal. See Watson, 288 N.C. App. at 267, 885 S.E.2d at 860; see also Worlock, 243
III. Conclusion
We conclude that Plaintiff’s appeal from the order granting Defendants’ motion
to compel discovery was untimely, and we therefore dismiss that issue. We further
conclude that the order imposing sanctions is not properly before us as it is an
interlocutory order and Plaintiff failed to show the order imposing sanctions affected
a substantial right.
-8- WHITE V. BRAVE QUEST CORP.
DISMISSED.
Judges ZACHARY and COLLINS concur.
-9-