IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-404

No. COA21-546

Filed 21 June 2022

Mecklenburg County, No. 21 CVS 767

LISA BIGGS FORE, Plaintiff,

v.

THE WESTERN NORTH CAROLINA CONFERENCE OF THE UNITED 

METHODIST CHURCH (a/k/a WESTERN NORTH CAROLINA CONFERENCE); 

and THE CHILDREN’S HOME, INCORPORATED (a/k/a THE CHILDREN’S 

HOME, a/k/a THE CROSSNORE SCHOOL & CHILDREN’S HOME, a/k/a 

CROSSNORE CHILDREN’S HOME), Defendants.

Appeal by defendants from order entered 11 June 2021 by Judge Lisa C. Bell

in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 April 2022.

Janet Janet & Suggs, LLC, by Richard Serbin and Matthew White, for plaintiffappellee.

Ogletree Deakins, by Kelly S. Hughes and Ashley P. Cuttino, admitted pro hac 

vice, for defendant-appellant The Western North Carolina Conference of the 

United Methodist Church (a/k/a Western North Carolina Conference).

Nelson Mullins Riley & Scarborough LLP, by Lorin J. Lapidus, G. Gray Wilson 

and D. Martin Warf, for defendant-appellant The Children’s Home, 

Incorporated (a/k/a The Children’s Home, a/k/a The Crossnore School & 

Children’s Home, a/k/a Crossnore Children’s Home). 

TYSON, Judge.
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¶ 1 The Western North Carolina Conference of the United Methodist Church 

(“WNCCUMC”) and The Crossnore School & Children’s Home (“Children’s Home”) 

(together “Defendants”) purport to appeal a trial court’s ex parte order directing 

disclosure of non-joined, third-party records of alleged child sexual abuse. We dismiss

this interlocutory appeal without prejudice. 

I. Background 

¶ 2 Plaintiff asserts she was sexually abused as a minor, while she resided at The 

Children’s Home in Winston-Salem during the 1970s. Plaintiff claims she reported 

the alleged abuse by her former Children’s Home employee-parents to officials in 

Rockingham County. Plaintiff filed a civil action in Mecklenburg County Superior 

Court against Defendants on 6 January 2021. Plaintiff claims Defendants 

negligently supervised the staff and breached fiduciary duties they owed to her.

¶ 3 Defendants filed motions to dismiss Plaintiff’s complaint under Rule 12(b)(6), 

contending 2019 N.C. Sess. Laws 5 § 4.2(b) and N.C. Gen. Stat. § 1-56(b) (2021) are

unconstitutional as-applied to them under Article I, Section 19 of the North Carolina 

Constitution. WNCCUMC moved to dismiss Plaintiff’s claims pursuant to Rule 

12(b)(1). These motions remain pending before the trial court.

¶ 4 On 3 June 2021, Plaintiff filed a motion for production of criminal investigation 

records pursuant to N.C. Gen. Stat. § 132-1.4 (2021). Plaintiff’s motion sought 
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confidential records of alleged child sexual abuse by any Children’s Home employee 

against any minor residing therein from the surrounding counties’ sheriff’s offices,

Departments of Social Services, and police departments.

¶ 5 Plaintiff prepared a proposed order and submitted it along with her motion, 

which was mailed to the Mecklenburg County Clerk’s Office for filing. Plaintiff did 

not file nor serve a notice of hearing on her motion for production of records on 

Defendants. On 11 June 2021, the trial court entered Plaintiff’s proposed order, ex 

parte. The order decreed the various agencies and departments:

shall produce any and all information in whatever form

it exists in connection with the alleged child sexual abuse

committed by [employee parents] or other employees of the 

Children’s Home alleged to have sexually abused and/or 

engaged in sexual activities with a minor while a resident 

of the home. (emphasis supplied).

¶ 6 Defendants filed notice of appeal, separately sought and obtained a temporary 

stay, and petitioned for and obtained a writ of supersedeas.

II. Jurisdiction

¶ 7 Defendants’ appeal is clearly interlocutory. Appellate review is proper 

pursuant to N.C. Gen. Stat. § 7A-27(b)(3) if the party proves one of the requirements 

therein. 

¶ 8 “An order is interlocutory if it is made during the pendency of an action and 

does not dispose of the case but requires further action by the trial court in order to 
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finally determine the rights of all the parties involved in the controversy.” Flitt v. 

Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002) (citation omitted). 

Defendant is entitled to review “where ‘the trial court’s decision deprives the 

appellant of a substantial right which would be lost absent immediate review.’” Id.

(citation omitted).

III. Argument

¶ 9 Defendants argue their substantial rights are violated because they were not 

given prior notice and an opportunity to oppose Plaintiff’s motion for the production 

of alleged child sexual abuse records of non-joined third parties from surrounding 

county public entities. For nearly seventy years, the courts of this state have held: 

The notice required by these constitutional provisions in 

such proceedings is the notice inherent in the original 

process whereby the court acquires original jurisdiction, 

and not notice of the time when the jurisdiction vested in 

the court by the service of the original process will be 

exercised . . . After the court has once obtained jurisdiction 

in a cause through the service of original process, a party 

has no constitutional right to demand notice of further 

proceedings in the cause.

Collins v. Highway Commission, 237 N.C. 277, 281, 74 S.E.2d 709, 713 (1953)

(emphasis supplied). 

¶ 10 Defendants cite Mission Hosps., Inc. v. N.C. Dep’t of Health & Hum. Servs., 

189 N.C. App. 263, 270, 658 S.E.2d 277, 281 (2008), and Pask v. Corbitt, 28 N.C. App. 

100, 104, 220 S.E.2d 378, 382 (1975), to support their contention they were entitled 
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to prior notice of the hearing. Defendants’ reliance on these cases is misplaced.

¶ 11 Mission Hospital was a DHHS agency appeal, in which the party had directly 

violated North Carolina statutes forbidding a “member or employee of the agency 

making a final decision in the case [from] communicat[ing] , directly or indirectly, in 

connection with any issue of fact, or question of law, with any person or party or his 

representative, except on notice and opportunity for all parties to participate.” Mission 

Hosps., Inc., 189 N.C. App. at 270, 658 S.E.2d at 281 (emphasis supplied) (citation 

omitted). 

¶ 12 In Pask, the plaintiff filed a motion to add parties to the action pursuant to 

Rule 21 of our Rules of Civil Procedure, and this Court noted, “[l]ong prior to the 

adoption of G.S. 1A-1, Rule 21, North Carolina has held that existing parties to a 

lawsuit are entitled to notice of a motion to bring in additional parties.” Pask, 28 N.C. 

App. at 103, 220 S.E.2d at 381. The facts and issues in Mission Hospital and Pask

are wholly inapposite from those before us and do not show a substantial right to 

immediate review. 

¶ 13 Here, both Defendants have been haled into court by five different plaintiffs 

under recent legislation titled SAFE Child Act, 2019 N.C. Sess. Laws 5 § 4.2(b). This 

statute revived previously time-barred claims for child sexual abuse for a period of 

two years. Id. The plaintiffs in the first two cases filed and served written discovery

requests on Defendants. Defendants failed to produce any responses to discovery to 
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date, instead delaying with objections to each request and a reference to pending 

motions for a protective order which they have not noticed for hearing. 

¶ 14 Before Plaintiff could serve any written discovery requests, Defendants filed a 

motion to stay discovery pending the outcome of their motions to dismiss. Plaintiff 

was left with the choice to proceed without discovery or to file the contested motion 

seeking alternative means of locating evidence to support her claims. 

¶ 15 Unlike the requirements in Mission Hospital and Pask, no statute or 

constitutional provision under these facts requires Plaintiff to provide prior notice to 

Defendants for a hearing seeking criminal records of non-joined third parties from 

public entities, and which may affect Defendants’ prior employees, who are not joined 

as parties herein. Further, Defendants were aware through prior discovery requests 

of Plaintiff’s demand and intent to obtain the evidence. No formal notice was needed, 

because the order to produce was related and made to, and was obtained from, nonjoined third parties.

¶ 16 Defendants’ arguments are without merit asserting prior notice of a records 

request to public entities concerning non-joined third parties as a substantial right to 

an immediate appeal. As further discussed below, Defendants have shown no 

“substantial right which would be lost absent immediate review.” Flitt, 149 N.C. App. 

at 477, 561 S.E.2d at 513 (citations and internal quotation marks omitted).

IV. Jus Tertii
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¶ 17 Purported claims or rights of a third party cannot be asserted as a defense by 

an unrelated litigant. “In general, jus tertii cannot be set up as a defense by the 

defendant, unless he can in some way connect himself with the third party.” Comm. 

to Elect Dan Forest v. Emps. Pol. Action Comm., 376 N.C. 558, 592, 2021-NCSC-6, ¶ 

60, 853 S.E.2d 698, 723 (2021) (quoting Holmes v. Godwin, 69 N.C. 467, 470 (1873)).

¶ 18 Jus Tertii is a principle of law prohibiting a party from raising the claims or 

rights of third parties. Id. (citation omitted). Jus Tertii is defined as: “The right of a 

third party. The doctrine that [. . .] courts do not decide what they do not need to 

decide.” Jus Tertii, Black’s Law Dictionary (11th ed. 2019). “A jus tertii situation 

arises when the defendant has no defense of his own but wishes to defeat the 

plaintiff's action by alleging a defect in the plaintiff's title or the fact that the plaintiff 

has no title at all.” Jus Tertii Under Common Law and the N.I.L., 26 St. John’s L.

Rev. 135, 135 (1951).

¶ 19 The Idaho Supreme Court provides persuasive guidance in an illustrative case 

of mistaken assertion by a defendant of rights owned by a non-joined third party. 

Gissel v. State, 727 P.2d 1153, 1154 (Idaho 1986). Gissel had unlawfully harvested 

wild rice growing on lands jointly owned by the State of Idaho and the United 

States National Forest Service. Id. Gissel was convicted in state court of trespass. 

Id. Idaho officials seized and sold the harvested rice. Id. Because the State of Idaho 

owned only a one-half interest in the land, Gissel challenged the state’s authority to 
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seize, sell, and keep all profits from the sale of the rice. Id.

¶ 20 The Idaho Supreme Court held Gissel was entitled to one-half of the proceeds

from the sale, because the State of Idaho did not effectively join or make the jus 

tertii argument on behalf or under the authority of the United States National Forest 

Service. Id. at 1156. “The Gissels, though trespassers and without legal title, which 

title rests with the Forest Service, still by mere possession have greater rights 

superior to that of the state” to the other one-half of the proceeds from the sale. Id. 

¶ 21 Defendants are barred from asserting any of DSS’ or non-joined former 

employees’ third parties’ purported rights to notice of records as a jus tertii defense, 

when neither are parties to this action, Defendants cannot collaterally attack the 

orders and judgment entered in other cases to which they were not a party. Id.

¶ 22 Plaintiff’s motion to the court does not need a “mother may I” from Defendants 

to obtain relevant evidence to support their claims, particularly where Defendants 

are non-responsive to and delaying their access to that evidence. N.C. Gen. Stat. § 

132-1.4(a) (2021); Collins, 237 N.C. at 281, 74 S.E.2d at 713. Their purported 

assertions of entitlement to prior notice of a motion seeking non-party and third-party 

records to challenge the order are without merit.

V. Standing

¶ 23 “Every claim shall be prosecuted in the name of the real party in interest[.]” 

N.C. Gen Stat. § 1A-1, Rule 17(a) (2021). “The real party in interest is the party who 
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by substantive law has the legal right to enforce the claim in question.” Reliance Ins. 

Co. v. Walker, 33 N.C. App. 15, 19, 234 S.E.2d 206, 209 (1977) (citation omitted).

¶ 24 Here, Defendants are not the real party in interest relating to the request for 

records. Defendants are not the party investigated in the records requested. In fact,

the records were requested from non-joined third-parties. Only those parties whose

records were requested are “the real party in interest” with standing to challenge the 

motion to produce those records. Defendants do not have standing to challenge the 

motion in this case because they are not the real party in interest. Id.

VI. Records of Criminal Investigations

¶ 25 Presuming, arguendo, Defendants should have been given prior notice of the 

hearing under any theory, Defendants are not the subject of the criminal 

investigation records and were not entitled to prior notice on those grounds. 

Defendants and our dissenting colleague argue the production of the criminal records

and investigation of purported former employees ordered by the court will violate 

Defendants’ procedural and substantial rights. 

Records of criminal investigations conducted by public law 

enforcement agencies, records of criminal intelligence 

information compiled by public law enforcement agencies, 

and records of investigations conducted by the North 

Carolina Innocence Inquiry Commission, are not public 

records as defined by G.S. 132-1. Records of criminal 

investigations conducted by public law enforcement 

agencies or records of criminal intelligence information 

may be released by order of a court of competent 
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jurisdiction.

N.C. Gen. Stat. § 132-1.4(a) (2021) (emphasis supplied). Unlike the cases Defendants 

rely upon, the statute includes no restrictions on the trial court’s power and discretion

to release criminal investigation records, nor assert any right or requirement of prior 

notice to non-parties. 

¶ 26 Further, Defendants have not shown they are “aggrieved” parties to merit 

immediate review. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) 

(“[O]nly a ‘party aggrieved’ may appeal a trial court order or judgment, and such a 

party is one whose rights have been directly or injuriously affected by the action of 

the court.”) (citation omitted). 

¶ 27 The record on appeal also omits the facts, pleadings, and orders from this Court 

on Defendants’ motion for temporary stay, which was allowed on 12 July 2021, and 

their petition for a writ of supersedeas, which was allowed on 21 August 2021, staying 

the trial court’s order “pending the outcome of petitioner’s appeal to this Court.” Our 

dissenting colleague agrees “this writ of supersedeas references the appeal before us.”

That order remains unaffected by the dismissal of this interlocutory appeal.

VII. Conclusion 

¶ 28 Defendants have failed to carry their burden to show their substantial rights 

were violated by the superior court’s order to warrant an immediate interlocutory 

review. Defendants moved for and received a temporary stay and petitioned for a 
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writ of supersedeas, which this Court allowed. With no Rule 54(b) certification or

showing of a substantial right which will be lost without immediate review, 

Defendants’ interlocutory appeal is denied. This case is dismissed without prejudice.

DISMISSED WITHOUT PREJUDICE. 

Judge ZACHARY concurs.

Chief Judge Stroud dissents with separate opinion.
No. COA21-546 – Fore v. Western N.C. Conference of United Methodist Church

STROUD, Chief Judge, dissenting.

¶ 29 The Majority’s opinion dismisses Defendants’ appeal on the ground it is 

interlocutory and Defendants cannot show a Rule 54(b) certification or loss of a 

substantial right absent immediate review. I agree Defendant’s appeal is 

interlocutory and the trial court has not issued a Rule 54(b) certification. But I 

believe Defendants have demonstrated a substantial right because the trial court 

entered an ex parte order with no notice to the Defendants; the trial court should not 

take any action without proper notice of the hearing to all parties. Defendants have 

also demonstrated a substantial right based on the statutory protections they claim 

the ex parte order violates. Turning to the merits, I would hold the trial court erred 

both because it entered the order ex parte, without statutory authority to do so 

without notice to Defendants, and because the order released Department of Social 

Services (“DSS”) records and law enforcement records of child abuse investigations 

protected by North Carolina General Statute § 7B-2901(b) without following its plain, 

unambiguous language about giving DSS proper notice and a chance to be heard. 

Finally, I disagree with the Majority Opinion when it claims the writ of supersedeas 

remains unaffected by our dismissal of this appeal.

¶ 30 “Notice of issues to be resolved by the adversary process is a fundamental

characteristic of fair procedure.” Matter of Duvall, 268 N.C. App. 14, 19, 834 S.E.2d 
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177, 181 (2019) (quoting Lankford v. Idaho, 500 U.S. 110, 126, 111 S. Ct. 1723, 1732 

(1991)). “In addition to prior notice, a ‘fundamental requirement of due process is the 

opportunity to be heard at a meaningful time and in a meaningful manner.’” Id.

(quoting Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 902 (1976)) (internal 

quotations and citation from Mathews omitted). These fundamental components of 

due process extend to the issue at hand where Defendants had no notice of Plaintiff’s 

request to the trial court for entry of an ex parte order requiring disclosure of 

documents from DSS and several law enforcement agencies to Plaintiff. See In re 

Officials of Kill Devil Hills Police Dept., 223 N.C. App. 113, 118, 733 S.E.2d 582, 587 

(2012) (finding a due process violation when the trial court entered an order “without 

providing notice or opportunity to be heard”). For example, in In re Officials of Kill 

Devil Hills Police Dept., this Court found a trial court violated the appellants’ due 

process rights when it ordered them to turn over police personnel files because the 

implicated officers had no “notice or opportunity to be heard” since the trial court had 

never conducted a hearing. Id., 233 N.C. App. at 114, 118, 733 S.E.2d at 584–85, 587. 

Here, likewise the trial court’s actions raised due process concerns by granting 

Plaintiff’s motion without hearing or prior notice to Defendant and ordering various 

government entities, including police departments and DSS, to turn over a broad 

range of documents regarding investigations of abuse of minors without any notice or 

an opportunity to be heard.
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¶ 31 These due process concerns allow Defendants to demonstrate the trial court’s 

interlocutory ex parte order “affects some substantial right claimed by . . . [them] and 

will work an injury to [them] if not corrected before an appeal from the final 

judgment.” Department of Transp. v. Rowe, 351 N.C. 172, 174–75, 521 S.E.2d 707, 

709 (1999) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 

(1950)). This Court has “previously recognized the ‘constitutional right to due process 

is a substantial right.’” Hall v. Wilmington Health, PLLC, 2022-NCCOA-204, ¶ 20 

(quoting Savage Towing Inc. v. Town of Cary, 259 N.C. App. 94, 99, 814 S.E.2d 869, 

873 (2018)). Since the trial court entered an ex parte order without notice to 

Defendants and thereby implicated their due process rights, Defendants have 

demonstrated a substantial right sufficient to allow us to hear their appeal from an 

interlocutory order.

¶ 32 The Majority Opinion rejects Defendant’s notice argument by relying on 

Collins v. N. Carolina State Highway & Pub. Works Comm’n, 237 N.C. 277, 74 S.E.2d 

709 (1953), to contend constitutional notice only requires notice of the original 

proceeding. But the constitutional due process landscape has developed significantly 

since 1953. As part of those developments, this Court has recognized “engaging in ex 

parte communications with one party without notice to the other parties” in the 

middle of proceedings violates due process. See Mission Hospitals, Inc. v. N.C. Dept. 

of Health and Human Services, Div. of Facility Services, 189 N.C. App. 263, 265, 267–
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69, 658 S.E.2d 277, 278, 280–81 (2008) (so holding when, after a hearing but before 

issuing the final agency decision, the decision-maker received additional materials 

and argument ex parte). The Majority Opinion dismisses Mission Hospitals on the 

grounds it relied on a statutory violation, but this Court clearly concluded the ex parte

actions “compromised [appellant’s] due process rights.” Id., 189 N.C. App. at 269, 658 

S.E.2d at 281.

¶ 33 The Majority Opinion also contends Defendants cannot immediately appeal 

because they are not aggrieved parties given the statutes at issue here do not require 

Plaintiff to provide Defendants notice about a hearing on Plaintiff’s receipt of records 

from third parties. The Majority Opinion relies on Bailey v. State, 353 N.C. 142, 540 

S.E.2d 313 (2000), to argue only an aggrieved party can appeal a trial court order or 

judgment. First, it is not clear Bailey applies to the situation here. Bailey involved 

a case where a non-party, our State’s Attorney General, attempted to appeal a case 

in which he was not a party. 353 N.C. at 156, 540 S.E.2d at 322. By contrast, here 

Defendants-Appellants are parties.

¶ 34 Second, Defendants are aggrieved parties. “A party aggrieved is one whose 

legal rights have been denied or directly and injuriously affected by the action of the 

trial court.” In re Winstead, 189 N.C. App. 145, 151, 657 S.E.2d 411, 415 (2008) 

(quotations and citation omitted). Here, Defendants did not receive the notice of the 

hearing they were supposed to receive, thereby implicating their due process rights. 
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As a result, Defendants are aggrieved parties who can appeal the order at issue. See 

Wachovia Bank & Trust Co., N.A. v. Parker Motors, Inc., 13 N.C. App. 632, 634, 186 

S.E.2d 675, 677 (1972) (linking whether a party is aggrieved to whether the order 

affects a substantial right).

¶ 35 In addition—as part of an argument that Defendants were not entitled to 

notice because they are not the subject of the requested criminal investigation records 

and thus do not have a substantial right—the Majority Opinion addresses only the 

Public Records statute regarding release of records of criminal investigations, but the 

records covered by the trial court’s order include records of abuse of juveniles 

investigated by two Departments of Social Services in addition to records of law 

enforcement agencies. All the records sought, both as to criminal investigations and 

investigations by DSS, address sexual abuse of minor children. Confidentiality of 

records of child abuse and statutory procedures for release of these records is 

addressed in Chapter 7B, Article 29 of the General Statutes, specifically in North 

Carolina General Statute § 7B-2901(b)(2) (2021).

¶ 36 The Majority Opinion does not discuss Chapter 7B but relies solely upon North 

Carolina General Statute § 132-1.4, which deals with the limitations upon public 

records in the context of law enforcement investigations. N.C. Gen. Stat. § 132-1.4 

(2021). As a general rule, “[t]he Public Records Act does not provide for disclosure of 

records of criminal investigations or criminal intelligence information . . . .” Gannett 
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Pacific Corp. v. North Carolina State Bureau of Investigation, 164 N.C. App. 154, 160–

61, 595 S.E.2d 162, 166 (2004). “Because records of criminal investigations and 

records of criminal intelligence information are not public records, a party seeking 

disclosure of such records must seek release ‘by order of a court of competent 

jurisdiction.’” Id., 164 N.C. App. at 157, 595 S.E.2d at 164 (quoting N.C. Gen. Stat. § 

132-1.4(a) (2003)1). This Court has previously recognized that the fact that a criminal 

investigation has concluded does not convert records of criminal investigations into 

public records because the justifications for protection of these records remain even 

after an investigation has ended:

As noted by our Supreme Court, 

“[i]t is clear that if investigatory files were made 

public subsequent to the termination of enforcement 

proceedings, the ability of any investigatory body to 

conduct future investigations would be seriously 

impaired. Few persons would respond candidly to 

investigators if they feared that their remarks would 

become public record after the proceedings. Further, 

the investigative techniques of the investigating

body would be disclosed to the general public.” An 

equally important reason for prohibiting access to 

police and investigative reports arises from 

recognition of the rights of privacy of individuals 

mentioned or accused of wrongdoing in unverified or 

unverifiable hearsay statements of others included 

 

1 The current version of § 132-1.4(a) contains the same language quoted by Gannett; the 

only change since the 2003 version of the statute is the addition of protection for records of 

investigations from the North Carolina Innocence Inquiry Commission. Compare N.C. Gen. 

Stat. § 132-1.4(a) (2003) with N.C. Gen. Stat. § 132-1.4(a) (2021).
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in such reports.

[News and Observer v. State; Co. of Wake v. State; Murphy 

v. State, 312 N.C. 276,] 282–83, 322 S.E.2d [133,] 138 

[(1984)] (citations omitted) (quoting Aspin v. Department of 

Defense, 491 F.2d 24, 30 (D.C.Cir.1973)).

Gannett Pacific Corp., 164 N.C. App. at 160, 595 S.E.2d at 166 (first alteration in 

original; case citations added). And the records Plaintiff sought deal with abuse of 

minors. Because the records deal with child abuse, §132-1.4 specifically requires 

compliance with Article 29 of Chapter 7B: “Records of investigations of alleged child 

abuse shall be governed by Article 29 of Chapter 7B of the General Statutes.” N.C. 

Gen. Stat. § 132-1.4(l) (2021). Within Article 29 of Chapter 7B, North Carolina 

General Statute § 7B-2901(b)(2) specifically provides for notice to DSS in civil actions 

when a party seeks these types of records in a civil action and DSS is not already a 

party, thereby refuting the Majority Opinion’s conclusion § 132-1.4 does not require 

prior notice to non-parties or entities that are not the subject of the criminal 

investigations.

¶ 37 The Majority Opinion further claims Plaintiff had no choice but to pursue her 

case without discovery or to file the motion to seek to locate evidence to support her 

case. Certainly Plaintiff has the option of seeking to locate evidence by requesting 

records from the law enforcement agencies and Departments of Social Services, but 

Plaintiff still has the obligation to follow statutory procedures in seeking these 
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records and to give all parties to her lawsuit notice before asking the trial court to 

enter an order. Plaintiff was entitled to seek production of records, but she was not 

entitled to do so without following statutory procedures and without notice to 

Defendants—because Defendants are parties to this case, not because information in 

records is about Defendants.

¶ 38 The Majority Opinion finally notes there is no specific statute requiring 

Defendants to have notice of the hearing before the trial court, but ex parte hearings 

are the exception to the general rule and are allowed only in specific circumstances, 

as recognized by Rule 5 of the North Carolina Rules of Civil Procedure. Under Rule 

5, “every written motion other than one which may be heard ex parte, and every 

written notice, appearance, demand, offer of judgment and similar paper shall be 

served upon each of the parties.” N.C. Gen. Stat. § 1A-1, Rule 5(a) (2021) (emphasis 

added). Numerous other rules reinforce the importance of and ensure the provision 

of notice. See General Rules of Practice for the Superior and District Court, Rules 6 

(2021) (indicating “[m]otions may be heard and determined either at the pre-trial 

conference or on motion calendar as directed by the presiding judge”), 7 (requiring 

plaintiff and defendant attorneys to work together to schedule a pre-trial conference), 

2(b) (indicating civil calendar be published “no later than four weeks prior to the first 
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day of court”)2; 26 Jud. Dist. Sup. Civil R. 12.1–12.3 (2021) (local rules applicable to 

Mecklenburg County Superior Court requiring filing party to calendar motions for a 

hearing and then file a “notice of hearing” which then “will be served on counsel for 

the opposing party or parties” within two business days); N.C. R. Prof. Conduct 

3.5(a)(3), (d) (2021) (barring attorneys from communicating ex parte “with the judge 

or other official regarding a matter pending before the judge or official” except where 

“authorized to do so by law or court order” where “[e]x parte communication means a 

communication on behalf of a party to a matter pending before a tribunal that occurs 

in the absence of an opposing party, without notice to that party, and outside the 

record”); North Carolina Code of Judicial Conduct Canon 3(A)(4) (2021) (“A judge 

should accord to every person who is legally interested in a proceeding, or the person’s 

lawyer, full right to be heard according to law, and, except as authorized by law, 

neither knowingly initiate nor knowingly consider ex parte or other communications 

concerning a pending proceeding.”). Plaintiff did serve her motion on Defendants, 

but she did not serve any notice of hearing or notification that she would be 

 

2 The current version of the Rules of Practice for Superior and District Court now includes 

slightly different language around notice. See General Rules of Practice for the Superior 

and District Court, Rule 6 (eff. 1 Sept. 2021) (requiring an attorney “scheduling a hearing 

on a motion” to “make a good-faith effort to request a date for the hearing on which each 

interested party is available” except “if a motion is properly made ex parte” (emphasis 

added)).
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requesting the trial court to enter an order without a hearing, and she has not 

identified any statutory basis to have had her motion heard ex parte.

¶ 39 Beyond the due process notice issue, Defendants also have a substantial right 

on the grounds they are asserting a statutory privilege. In Sharpe v. Worland, our 

Supreme Court recognized 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 . . . .” 351 N.C. 159, 166, 522 S.E.2d 577, 581 (1999). 

This Court then extended the “reasoning set forth in Sharpe” to find an appeal 

“affect[ed] a substantial right” where the defendants challenged an order compelling 

discovery on the grounds it would lead to the release of “juvenile records, social 

services records, [and] law enforcement records” in violation of statutes requiring a 

court order to release those records, including North Carolina General Statutes §§ 

7B-2901(b) and 132-1.4, both of which are at issue here.3 Jane Doe 1 v. Swannanoa 

Valley Youth Development Center, 163 N.C. App. 136, 139, 592 S.E.2d 715, 717–18 

 

3 Specifically, the defendants there challenged the order releasing those records on the 

grounds the North Carolina Industrial Commission was not a court that could order 

disclosure of the records as required by statute, but this Court found the Industrial 

Commission was a court for these purposes. Jane Doe 1, 163 N.C. App. at 139, 592 S.E.2d 

at 718. Regardless of the specific nature of the defendants’ challenge on the merits in that 

case, Jane Doe 1 should guide our decision here on the question of whether Defendants 

have demonstrated a substantial right because it found defendants asserting the same 

statutory protections at issue here had shown a substantial right as laid out above.
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(2004). Given Defendants here are asserting the same statutory privilege this Court, 

with the Majority Opinion’s author concurring, determined implicated a substantial 

right before, Defendants’ appeal here also involves a substantial right.

¶ 40 Jane Doe 1 informs whether Defendants asserted a substantial right here 

despite the fact that case involved a discovery request directly to its defendants. Id., 

163 N.C. App. at 137–38, 592 S.E.2d at 717. In addition to my previous response to 

the Majority Opinion’s aggrieved party argument, in Jane Doe 1, the defendants were 

not asserting a statutory privilege they explicitly directly held. Focusing on one of 

the common statutes at issue, North Carolina General Statute § 7B-2901(b), the 

protections there, based on the statute in effect in 2004, only indicated records “may 

be examined only by order of the court.” N.C. Gen. Stat. § 7B-2901(b) (2003). The 

statute was silent on whether a party in litigation who did not hold those records 

could assert the protection afforded by § 7B-2901(b). Id. Despite the statute not 

stating they held the statutory protection, the defendants in Jane Doe 1 had a 

substantial right based on asserting such protection, 163 N.C. App. at 139, 592 S.E.2d 

at 717–18, and similar reasoning applies here. Although the current statute does not 

say Defendants hold the statutory privilege, see N.C. Gen. Stat. § 7B-2901(b)(2) (2021) 

(providing for DSS to have “reasonable notice and an opportunity to be heard”), they 

can still claim a substantial right by asserting such protection.
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¶ 41 Thus, on both due process notice grounds and statutory privilege grounds, 

Defendants have shown they have a substantial right which will be lost without 

review of their interlocutory appeal. I therefore dissent from the dismissal of the 

appeal.

¶ 42 Turning to the merits of the case, I would hold the trial court erred because § 

7B-2901(b)(2) explicitly requires notification to DSS and in camera review of any 

records which may be released and that did not occur here. Specifically, § 7B2901(b)(2) states records kept by DSS about juveniles under their care or court 

placement “may be examined only in the following circumstances”:

. . . 

(2) A district or superior court judge of this State presiding 

over a civil matter in which the department [DSS] is not a 

party may order the department to release confidential 

information, after providing the department with 

reasonable notice and an opportunity to be heard and then 

determining that the information is relevant and necessary 

to the trial of the matter before the court and unavailable 

from any other source. This subsection shall not be 

construed to relieve any court of its duty to conduct 

hearings and make findings required under relevant 

federal law before ordering the release of any private 

medical or mental health information or records related to 

substance abuse or HIV status or treatment. The 

department may surrender the requested records to the 

court, for in camera review, if surrender is necessary to 

make the required determinations.

. . . 
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N.C. Gen. Stat. § 7B-2901(b) (emphasis added). The plain, unambiguous language of 

the statute requires DSS to receive notice and an opportunity to be heard before 

Plaintiff can examine the DSS records to which she is granted access under the trial 

court order. “Where the language of a statute is clear and unambiguous, there is no 

room for judicial construction and the courts must construe the statute using its plain 

meaning.” See Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 

134, 136 (1990). Here, therefore, the trial court had to give DSS notice and an 

opportunity to be heard. Since nothing in our record indicates DSS received such 

notice or chance to be heard, I would hold the trial court erred.

¶ 43 This case also involves the scenario this statute aims to avoid. Section 7B2901(b) provides for DSS to keep a list of sensitive records under protective custody 

and then includes a catch-all provision to protect “other information which the court 

finds should be protected from public inspection in the best interests of the juvenile.” 

N.C. Gen. Stat. § 7B-2901(b). And as noted above, these same provisions apply to the 

records of the law enforcement agencies to the extent the records deal with 

investigations of child abuse, under North Carolina General Statute § 132-1.4(l). 

Based on the catch-all provision, the purpose of the statute is to protect sensitive 

information in the best interest of the juvenile. Section 7B-2901(b)(2) builds on that 

purpose by placing upon trial courts a further duty to help protect the sensitive 

information by ensuring DSS has notice and an opportunity to be heard before 
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determining if the information “is relevant and necessary to the trial of the matter 

before the court and unavailable from any other source.” Id. at (b)(2). These 

procedures help protect victims of abuse, in this case sexual abuse, who are not 

parties to the case because they ensure someone—specifically the trial court—can 

decide what should and should not be released and any conditions placed on the 

release. For example, even if the records Plaintiff seeks here are released to Plaintiff, 

they would likely be placed under seal and not simply released to the Plaintiff’s 

attorney with no restrictions on how they are used or shared. By not following the 

DSS notification procedures laid out in § 7B-2901(b)(2), the trial court has not fulfilled 

its duty under the statute to protect this sensitive information about victims of sexual 

abuse.

¶ 44 Finally, the Majority Opinion implies this Court’s writ of supersedeas will 

remain in effect to stay the ex parte discovery order before us despite the dismissal of 

the appeal, thus preventing the wholesale release of records of sexual abuse of 

children, now adults, who may be harmed by the public release of this information. 

But the writ will not prevent the release of the records because it will no longer have 

any effect. “‘Supersedeas’ is a writ issuing from an appellate court to preserve the 

status quo pending the exercise of the appellate court’s jurisdiction, is issued only to 

hold the matter in abeyance pending review, and may be issued only by the court in 

which an appeal is pending.” City of New Bern v. Walker, 255 N.C. 355, 356, 121 
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S.E.2d 544, 545–46 (1961) (per curiam) (all emphasis included has been added; 

emphasis from original removed) (citing Seaboard Air-Line R. Co. v. Horton, 176 N.C. 

115, 96 S.E.2d 956 (1918)). In other words, the writ of supersedeas only applies when 

the appeal is pending before this Court. See Craver v. Craver, 298 N.C. 231, 237–38, 

258 S.E.2d 357, 362 (1979) (“The writ of supersedeas may issue only in the exercise 

of, and as ancillary to, the revising power of an appellate court; its office is to preserve 

the status quo pending the exercise of appellate jurisdiction.” (emphasis added after 

“status quo”)). The writ of supersedeas in this case recognizes that it only applies 

while this appeal is pending; it states, the ex parte order on appeal “is hereby stayed 

pending the outcome of petitioner’s [Defendants’] appeal to this Court.”4 COA# P21-

243, Dkt. No. 1 (24 August 2021) (emphasis added). The Majority Opinion dismisses 

Defendants’ appeal, and thus the writ of supersedeas can have no further effect; there 

is no longer an appeal pending to which its power can attach. The writ of supersedeas 

here and writs of supersedeas in general only apply when the appeal in connection 

with which they are issued is pending, and once the Majority Opinion dismisses the 

 

4 The writ of supersedeas provides as follows: “The order entered by Judge Lisa C. Bell on 

11 June 2021 ordering production of records in the custody of the Winston-Salem Police 

Department, the Richmond County Sheriff’s office, the Richmond County Department of 

Social Services, the Richmond County Juvenile Division, the Richmond County Court, the 

Forsyth County Sheriff’s office, and the Forsyth County Department of Social Services is 

hereby stayed pending the outcome of petitioner’s appeal to this Court.” COA# P21-243, 

Dkt. No. 1 (24 August 2021). The order referenced in the writ of supersedeas is the order 

on appeal here.
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interlocutory appeal, the plain language of the writ here instructs the order on appeal 

is no longer stayed.

¶ 45 Because I believe Defendants have shown a substantial right on both due 

process and statutory grounds, I would not dismiss their appeal as interlocutory. 

Further, because Defendants were entitled to notice of the hearing of Plaintiff’s 

motion by the trial court and the plain, unambiguous language of § 7B-2901(b) also 

requires the trial court to give DSS notice and the chance to be heard before releasing 

the DSS records at issue, I would find the trial court erred by entering the order ex 

parte and without prior notice to either Defendants or DSS. Lastly, since the Majority 

Opinion dismisses this appeal, the writ of supersedeas provides no further protection.

¶ 46 Respectfully, I dissent.