IN THE SUPREME COURT OF NORTH CAROLINA

No.426A18

Filed 18 December 2020

ELIZABETH ZANDER and EVAN GALLOWAY

v.

ORANGE COUNTY, N.C. and the TOWN OF CHAPEL HILL

Appeal pursuant to N.C.G.S. § 7A-27(a)(4) from an order on plaintiffs’ motion 

allowing class certification and appointment of class counsel entered on 3 August 

2018 by Judge C. Winston Gilchrist in Superior Court, Orange County. Heard in the 

Supreme Court on 3 February 2020.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King III, 

Daniel Smith, and Matthew B. Tynan, for plaintiffs.

Womble Bond Dickinson, by James R. Morgan, Sonny S. Haynes, and Patricia 

I. Heyen, for defendants.

MORGAN, Justice.

In this matter, we are asked to determine whether the Superior Court, Orange 

County abused its discretion in certifying two classes of plaintiffs who wish to recover 

impact fees assessed by defendants Orange County and the Town of Chapel Hill 

under a now-repealed statute which had been enacted to allow certain counties and 

municipalities to defray the costs for constructing public schools, among other public 

services. As discussed herein, we affirm the trial court’s order regarding class 

certification. Defendants have also advanced arguments of error in a related 
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discovery issue in the case, which we dismiss as interlocutory and not properly before 

this Court at this time. 

Factual Background and Procedural History

Although the essence of this appeal lies in our review of the trial court’s 

decision regarding class certification, in order to understand the origination of this 

case and the parties’ appellate arguments, initially it is appropriate to engage in a 

brief review of the history of the impact fee legislation underlying plaintiffs’ claims 

and hence the potential classes which plaintiffs seek to represent. In 1987, the North 

Carolina General Assembly passed “An Act Making Sundry Amendments Concerning 

Local Governments in Orange and Chatham Counties,” authorizing Orange County 

to pass an ordinance providing “a system of impact fees to be paid by developers to 

help defray the costs to the County of constructing certain capital improvements, the 

need for which is created in substantial part by the new development that takes place 

within the County.” 1987 N.C. Sess. Law 460. Among other types of capital 

improvements listed in the 1987 Session Law, Orange County was specifically 

authorized to collect impact fees for defraying the cost of public schools in the Town 

of Chapel Hill. The 1987 Session Law included the following provision:

(i) Limitations on Actions. 

(1) Any action contesting the validity of an ordinance 

adopted as herein provided must be commenced not 

later than nine months after the effective date of 

such ordinance.
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(2) Any action seeking to recover an impact fee must 

be commenced not later than nine months after the 

impact fee is paid.

1987 N.C. Sess. Law 460, § 17(i).

In 1991, the General Assembly expanded Orange County’s authority to permit 

the County to levy and collect impact fees for capital needs not only to benefit public 

schools in the Town of Chapel Hill, but also to defray costs of public schools

throughout the entire county. 1991 N.C. Sess. Law 324, §§ 1, 2. The enabling 

legislation was further amended in 1993. 1993 N.C. Session Law 642, § 4(a)–(b). 

Pursuant to the authority granted by the state’s legislative body in these acts, 

to which we shall refer collectively as “the enabling legislation” for purposes of this 

decision, in 1993 the Orange County Board of Commissioners (the Board) adopted the 

“Orange County Educational Facilities Impact Fee Ordinance” and began collecting 

such fees from property owners seeking certificates of occupancy. The Town of Chapel 

Hill and the Town of Carrboro, acting on behalf of Orange County, also collected fees 

under the ordinance. In 2007, Orange County retained TischlerBise Inc., a company 

of “fiscal, economic and planning consultants” based in the state of Maryland, for 

assistance with a new impact fee schedule. TischlerBise prepared reports that 

purported to calculate the “maximum supportable impact fees” for new housing to be

built in Orange County based on expected costs for land, school building construction, 

portable classrooms, support facilities, buses and other school vehicles, and 

consultant studies. Orange County adopted TischlerBise’s fee values. On 11 
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December 2008, the Board adopted Orange County Ordinance 2008-114 (the 2008 

Ordinance), which amended the Orange County Educational Facilities Impact Fee 

Ordinance. See 2008 Ordinance, §§ 30-31 to 80.

1 The 2008 Ordinance provided impact 

fee amounts which would become effective on the respective dates of 1 January 2009, 

1 January 2010, 1 January 2011, and 1 January 2012. Id. § 30-33 The fee amounts 

prescribed by the 2008 Ordinance were determined by setting fees at varying 

percentages of the values in the reports produced by TischlerBise. 

On 25 September 2015, plaintiffs purchased a parcel of real property situated 

in the Town of Chapel Hill and consequently located in Orange County. Plaintiffs 

subsequently built a house on the land. The school impact fees at issue in this matter 

were levied against plaintiffs as authorized by the 2008 Ordinance, pursuant to which 

plaintiffs were assessed $11,423.00. Following an unsuccessful attempt to seek a 

waiver of the impact fees or an exemption from payment of the assessed impact fees, 

plaintiffs paid the impact fees to the Town of Chapel Hill on 4 May 2016. On 15 

November 2016, the Board promulgated Orange County Ordinance 2016-034, titled

“An Ordinance Amending Chapter 30, Article II - Educational Facilities Impact Fee

of the Orange County Code of Ordinances” (the 2016 Ordinance), that included new 

fees based upon additional reports and calculations from TischlerBise. Plaintiffs 

would have paid a lower fee under the 2016 Ordinance’s fee schedule. See 2016 

 

1 Certified copies of the ordinances in question were provided in the supplemental 

record to this case, which can be viewed through the Court’s electronic filing system. 
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Ordinance § 30-33. The 2016 Ordinance further provided that (1) any fees not 

expended within ten years “shall be refunded to the feepayer,” 2016 Ordinance § 30-

35(e)(1); (2) “[i]f the Schedule of Public School Impact Fees . . . is reduced . . . no refund 

of previously paid fees shall be made,” but the “difference between the old and new 

fees shall be returned to the feepayer” under certain circumstances, id. § 30-35(e)(2); 

and (3) “[w]here an impact fee has been collected erroneously, or where an impact fee 

has been paid, and the feepayer subsequently files for and is granted an exception . . 

. the fee shall be returned to the feepayer,” id. § 30-35(e)(3).

Plaintiffs commenced their putative class action by filing a class action 

complaint on 3 March 2017 asserting thirteen claims for relief against defendants, 

including, inter alia, claims premised upon an allegation that fees collected under the 

2008 Ordinance were illegal and including claims seeking partial refunds as provided 

under the 2016 Ordinance. On 16 May 2017, the Board, recognizing that the General 

Assembly was considering the prospect of repealing the enabling legislation for the 

impact fees at issue and thereby revoking Orange County’s impact fee authority, 

adopted an ordinance reinstating the fees which had been in effect from 1 January 

2012 to 31 December 2016 for housing categories that had been included in the 2008 

Ordinance’s fee schedule. Despite this apparent attempt by Orange County to blunt 

any action by the General Assembly with regard to the County’s powers to assess 

impact fees, on 20 June 2017 the General Assembly repealed the entirety of the 
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enabling legislation, the 1987 Session Law, along with all of its amendments. See 

2017 N.C. Session Law 36 (the Repeal Act).

In the meantime, the case at bar was proceeding through its initial discovery

stage. On 16 April 2018, plaintiffs filed a “Motion to Certify Classes and Subclasses 

and Appoint Class Counsel” and a “Motion to Compel Discovery Responses,” seeking 

from defendants, inter alia, the identities of prospective members of plaintiff’s 

proposed classes and subclasses—other parties who had been assessed impact fees.

The trial court heard arguments on both motions on 7 May 2018. Plaintiffs sought 

class certification only for claims against Orange County alleging that the impact fees 

were ultra vires and that rebates were owed to the members of the classes pursuant 

to the 2016 Ordinance.2 On 11 May 2018, before the trial court had issued its rulings 

on plaintiffs’ motions, this Court issued its decision in Quality Built Homes Inc. v. 

Town of Carthage, 371 N.C. 60, 813 S.E.2d 218 (2018) (Quality Built II), which 

addressed the applicable statute of limitations for impact fee claims. In light of the 

new legal authority, defendants filed a “Notice of Subsequently Decided Controlling 

Authority,” noting the Quality Built II decision without further reference. 

 

2 At the hearing, defendants contended that plaintiffs’ 16 April 2018 Motion to Certify 

Classes and Subclasses and Appoint Class Counsel did not clearly identify the specific claims 

for which plaintiffs sought class treatment. Defendants also argued that a proposed order 

submitted by plaintiffs on 7 May 2018 did not specify which claims were being certified and 

that any order should clarify “which class members can bring which claims.” Plaintiffs’ second 

proposed order submitted on 4 June 2018 more precisely identified the classes and claims 

discussed at the 7 May 2018 hearing.
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On 25 May 2018, the trial court notified the parties that plaintiffs’ Motion to 

Certify Classes and Subclasses and Appoint Class Counsel would be allowed and 

asked that plaintiffs prepare the order for the trial court to enter which formally 

allowed the motion. In satisfaction of the trial court’s request, plaintiffs provided the 

trial court with a recommended order. The order narrowed the proposed classes in 

such a manner that plaintiffs only sought class certification with respect to claims 

against Orange County, and reduced the class claims for relief from thirteen to four 

claims. Defendants filed a Motion for Reconsideration on 12 June 2018. The trial 

court heard the motion to reconsider on 29 June 2018. On 3 August 2018, the trial 

court entered an order certifying a “Feepayer Class”—defined as “All persons who 

paid a fee in the amounts established in the 2008 Fee Ordinance during the period 

[of 3 March 2014 to 31 December 2016]”—and a “Refund Class”—defined as “All 

persons who paid a fee for a housing unit for which the corresponding fee [payable 

effective 1 January 2017] under the 2016 Amendment would have been less.” The 

order provided that the Feepayer Class was certified as to the Third (fees alleged to 

be ultra vires as enforced by the Town of Chapel Hill), Eleventh (request for 

declaratory judgment against both defendants that fees paid under the 2008 

amendment to the Ordinance in order to obtain a certificate of occupancy were 

unlawful), and Thirteenth (request for attorney fees and costs to be taxed against 

defendants) Class Action Claims for Relief asserted in the class action complaint and 

that those claims would proceed only against Orange County. The order also provided 
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that the Refund Class was certified only as to the Twelfth Class Action Claim for 

Relief (requested refund of fees pursuant to N.C.G.S. § 30-35(e)(2)) and that the claim 

would proceed only against Orange County.

Along the way, plaintiffs had served discovery requests upon defendants on 8 

June 2017, which included a request for production of Orange County’s fee payment 

receipts. The trial court allowed defendants an extension of time to respond until 14 

August 2017. Orange County first responded on 18 August 2017 that the request was 

“overly broad and unduly burdensome.” On 8 November 2017, Orange County served 

a supplemental response asserting a new objection based upon the perceived 

burdensome nature of plaintiffs’ discovery requests. On 21 February 2018, Orange 

County produced some of the requested fee receipts. On 16 April 2018, plaintiffs filed 

a motion to compel production of the remainder of the requested fee receipts, on the 

basis that Orange County had waived its objections by failing to timely respond to 

the 8 June 2017 discovery requests. At the 7 May 2018 motions hearing, plaintiffs 

argued that Orange County had waived its objections to production of the fee receipts

at issue by neglecting to seek an extension of time to serve its discovery responses or

failing to request a protective order under N.C. R. Civ. P. 26(c) or 37(a)(2).

In addressing plaintiffs’ Motion to Compel Discovery Responses, the trial court 

directed Orange County in the 3 August 2018 order to “produce all of the impact fee 

receipts in its possession, custody, or control for any fee paid on or after [3 June 2014], 
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and all impact fee receipts in its possession, custody, or control, for any fee payment 

that would qualify the feepayer as a member of the refund class.”

Defendants3 timely filed a notice of appeal of the 3 August 2018 Order 

pursuant to N.C.G.S. § 7A-27 (2019) (providing that an appeal lies of right directly to 

the Supreme Court of a “trial court’s decision regarding class action certification 

under G.S. 1A-1, Rule 23”), and included in their appeal the portion of the 3 August 

2018 Order that concerned plaintiffs’ Motion to Compel Discovery Responses. 

Analysis

I. Class certification order

Defendants’ arguments regarding the trial court’s class certification primarily 

rest upon defendants’ position that there are time barriers to the claims asserted by 

plaintiffs. First, defendants assert that the “Feepayer Class” claims proposed by 

plaintiffs are barred by defendants’ discernment of a “statute of repose” set forth in 

the enabling legislation: “Any action contesting the validity of an ordinance adopted 

as herein provided must be commenced not later than nine months after the effective 

date of such ordinance.” 1987 N.C. Sess. Law 460, secs. 17(1)(1); 18(1)(1) (emphasis 

added). Defendants further contend that plaintiffs’ Twelfth Class Action Claim on 

behalf of the proposed “Refund Class” is similarly circumscribed by the provision of 

 

3 Although the certified claims are only against defendant Orange County and the 

discovery order is directed only to defendant Orange County, the appellant brief is styled as 

being filed on behalf of “defendants.” For consistency and ease of reading, we adopt the plural 

phrase “defendants” and employ it throughout this opinion.
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the enabling legislation stating: “Any action seeking to recover an impact fee must be 

commenced not later than nine months after the impact fee is paid.” 1987 N.C. Sess. 

I,aw 460 secs. 17(1)(2); 18(1)(2). 

Although the enabling legislation which spawned this legal dispute was 

entirely repealed in 2017, this abolishment of the legislation occurred after plaintiffs 

initiated their action against defendants which prompted the trial court’s order 

concerning class certifications and discovery rulings. Upon defendants’ appeal of 

these components of the trial court’s 3 August 2018 order to this Court, we address 

them with the mindfulness that our focus is limited to the trial court’s treatment of 

the matters of class certification and discovery embodied in the subject order. We do 

not, in any way, address the merits of the case.

1. Standard of review

Under Rule 23 of the North Carolina Rules of Civil Procedure, a class exists 

“when the named and unnamed members each have an interest in either the same 

issue of law or of fact, and that issue predominates over issues affecting only 

individual class members.” Faulkenbury v. Teachers’ & State Employees’ Ret. Sys. of 

N.C., 345 N.C. 683, 697, 483 S.E.2d 422, 431 (1997) (quoting Crow v. Citicorp 

Acceptance Co., 319 N.C. 274, 280, 354 S.E.2d 459, 464 (1987)). “Other prerequisites 

for bringing a class action [include] that . . . the named representatives must establish 

that they will fairly and adequately represent the interests of all members of the 

class. . . .” Id. (citing Crow, 319 N.C. at 282, 354 S.E.2d at 465). “If the prerequisites
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for a class action are established, it is within the discretion of the trial court as to 

whether the matter may proceed as a class action.” Id. (citing Crow, 319 N.C. at 283, 

354 S.E.2d at 466). Thus, a trial court’s decision whether to certify the class as 

proposed by plaintiffs is reviewed for an abuse of discretion; that is, “ ‘whether a 

decision is manifestly unsupported by reason or so arbitrary that it could not have 

been the result of a reasoned decision.’ ” Beroth Oil Co. v. N.C. Dep’t of Transp., 367 

N.C. 333, 338, 757 S.E.2d 466, 471 (2014) (quoting Frost v. Mazda Motor of Am., Inc., 

353 N.C. 188, 199, 540 S.E.2d 324, 331 (2000)). In the present case, defendants argue 

that the trial court abused its discretion regarding the certification of classes in this 

lawsuit based upon defendants’ view that all of plaintiffs’ claims were barred by the 

statute of repose.

2. Application to defendants’ appeal

Defendants first argue that plaintiffs’ claims on behalf of the Feepayer Class 

are time-barred by the provision in the enabling legislation which states: “Any action 

contesting the validity of an ordinance adopted as herein provided must be 

commenced not later than nine months after the effective date of such ordinance.”

1987 N.L. Sess. Law 460, secs. 17(1)(1)–(2); 18(1)(1)–(2) (emphasis added). 

Defendants contend that this provision is a statute of repose. “The term ‘statute of 

repose’ is used to distinguish ordinary statutes of limitation from those that begin to 

run at a time unrelated to the traditional accrual of the cause of action.” Boudreau v. 

Baughman, 322 N.C. 331, 339–40, 368 S.E.2d 849, 856 (1988). “Statutes of repose . . . 
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create time limitations which are not measured from the date of injury.” Trustees of 

Rowan Tech. v. Hammond Assoc, 313 N.C. 230, 234 n.3, 328 S.E.2d 274, 276–77 n.3 

(1985). Thus, if a challenge is not brought within the period specified in a statute of 

repose, the would-be plaintiff “literally has no cause of action.” Boudreau, 322 N.C.

at 341, 368 S.E.2d at 857; see generally Bolick v. American Barmag Corp., 306 N.C. 

364, 293 S.E.2d 415 (1982).

In the instant case, defendants contend that the primary claim brought by the 

Feepayer Class against Orange County—the Third Class Action Claim that the fees 

assessed are ultra vires—is “solely” a challenge to the validity of the 2008 Ordinance 

and therefore could only have been brought on or before 1 October 2009—within nine 

months of the 1 January 2009 effective date of the 2008 Ordinance. Defendants 

further contend that because plaintiffs’ primary claim is prohibited due to its 

tardiness, plaintiffs’ claim for declaratory judgment must fail as well. State ex rel. 

Edmisten v. Tucker, 312 N.L. 326, 338, 323 S.E.2d 294, 303 (1984) (holding that 

“jurisdiction under the Declaratory Judgment Act may be invoked only in a case in 

which there is an actual or real existing controversy between parties having adverse 

interests in the matter in dispute”). Likewise, defendants assert that where the 

primary underlying claim is foreclosed because it is untimely, plaintiffs’ claim for 

attorney fees and costs also is not eligible to be considered. In sum, because all of the 

class claims advanced on behalf of the Feepayer Class by plaintiffs fail as a matter of 
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law, defendants contend that the trial court abused its discretion in certifying the 

Feepayer Class. 

In their response, plaintiffs begin by emphasizing that, in order to prevail, 

defendants must persuade this Court that the trial court abused its discretion by 

certifying the Feepayer Class. Plaintiffs submit that the trial court’s approach to its 

considerations of the class certification issues indicates a reasoned basis for the 

forum’s conclusions where it considered extensive arguments from the parties, 

including seven briefs; reviewed numerous documents and items of correspondence; 

conducted two hearings; and then reconsidered the matter after the issuance of this 

Court’s decision in Quality Built II. As to the substance of defendants’ argument that 

the 1987 enabling legislation contained a statute of repose, plaintiffs acknowledge 

that plaintiffs “pleaded, argued, and believe that the 2008 Ordinance was unlawful,” 

but “also allege that the fees themselves were illegal and must be repaid, with interest, 

to those who paid them.”4 (Emphasis added). Plaintiffs underscore the assertions in 

their amended complaint that plaintiffs “have personal interests in the illegality of 

the fees” and that “[t]he illegality of the fees predominates” over other issues; “[t]he 

fee amounts established by the 2008 Amendment are ultra vires and illegal,” in 

reference to the Third Class Action Claim; “all fees . . . required by [d]efendants . . . 

 

4 Plaintiffs correctly note that Rule 8 of the North Carolina Rules of Civil Procedure 

permits pleading parties to “set forth two or more statements of a claim or defense 

alternatively or hypothetically, either in one count or defense or in separate counts or 

defenses,” provided that “the pleading is not made insufficient by the insufficiency of one or 

more of the alternative statements.” N.C. R. Civ. P. 8(e)(2).
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are unlawful,” in reference to the Eleventh Class Action Claim; and “[d]efendants 

acted outside the scope of their legal authority in requiring class . . . members to pay 

the fees specified by the 2008 Ordinance,” in reference to the Thirteenth Class Action 

Claim.

We agree with plaintiffs that they sought damages and further relief in their 

amended complaint on the basis that the fees assessed to plaintiffs and other 

potential class members were illegal. Thus, even assuming arguendo that there is a 

statute of repose in the enabling legislation governing impact fees which would bar 

plaintiffs’ allegations that the 2008 Ordinance was invalid, plaintiffs’ additional 

averments based upon the alleged illegality of fees collected would remain unaffected.

For this reason, we hold that plaintiffs’ claims here are not time-barred by any 

asserted statute of repose in the enabling legislation. 

As we observed in Quality Built II, a claim to recover fees illegally imposed 

under an unlawful municipal ordinance is in essence a claim wherein “the nature of 

the wrongful conduct and harm alleged . . . rests upon the . . . collection of . . . fees 

rather than the adoption of the impact fee ordinances.” 371 N.C. at 71–72, 813 S.E.2d 

at 227–28 (quotation omitted). We explained that such a claim “rest[ed] upon an 

alleged statutory violation that resulted in the exaction of an unlawful payment 

which plaintiffs had an inherent right to recoup.” Id. at 73, 813 S.E.2d at 228.

Likewise, in the case before us, even if defendants are shielded from claims that the 

2008 Ordinance was invalid based upon the operation of a statute of repose, any 
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claims sounding in an assertion that there was “the exaction of an unlawful payment”

from those who were required to pay the assessed impact fees are not subject to any 

statute of repose. Consequently, there is no prohibition against plaintiffs and other 

parties recognized in the trial court’s certification of classes, by virtue of a statute of 

repose, from proceeding with their proposed claims as the recognized Feepayer Class. 

Moreover, the enabling legislation itself, including the supposed statute of 

repose, was entirely repealed under the Repeal Act while this matter was pending, 

thereby rendering moot the basis of defendants’ arguments. Even if the nine-month 

limitation period referenced in the act authorizing the imposition and collection of 

impact fees could have been applicable here, the asserted class claims would still be 

able to be pursued because the presumed statute of repose would no longer be 

effective to halt the claims of plaintiffs and the other class members due to the 

elimination of the time limitation which was arguably included in the repealed 

enabling legislation. N.C. Session Law 2017-36 (“Repeal Act”). 

Since there is no existing authority for defendants’ argument that the trial 

court’s certification of the Feepayer Class was an abuse of discretion,5 we find no error 

on the part of the trial court on this issue.

 

5 Plaintiffs additionally note that the provisions of the 2008 Ordinance setting the 

amount of the fees challenged by the Feepayer Class claims were repealed by Orange County 

effective 1 January 2017, a date prior to the filing of this lawsuit. 
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3. Application to the Refund Class

Defendants also contest the trial court’s certification of plaintiffs’ Twelfth 

Class Action Claim for Relief, in which plaintiffs seek a determination that the 

“refunds required by Orange County Code Section 30-35(e)(2) are due and payable,” 

on behalf of the Refund Class—“All persons who paid a fee under the schedule of fees 

enacted in the 2008 Fee Ordinance for a housing unit for which the corresponding fee 

payable effective January 1, 2017 under the 2016 Amendment would have been less.”

Defendants contend that the “Twelfth Class Action Claim for Relief is 

fundamentally a claim to recover a portion of an impact fee already paid. . . . [and] 

clearly falls within the type of claims contemplated by Orange County’s enabling 

legislation,” citing 987 N.C. Sess. Law 460 secs. 17(1)(2); 18(i)(2) (“Any action seeking 

to recover an impact fee must be commenced not later than nine months after the 

impact fee is paid.” (emphasis added)). Defendants note that plaintiffs and “a 

substantial majority” of the proposed members in the “Refund Class” paid their 

impact fees more than nine months prior to the filing of the complaint and are 

therefore barred from recovery by the nine-month statute of repose set forth in the 

enabling legislation.

However, as plaintiffs argue, the remaining Refund Class claim in this case 

does not attempt “to recover an impact fee” as set forth in the 1987 legislative act, but 

instead asserts the right to partial refunds with interest as set forth by section 30-

35(e)(2) of the 2016 Ordinance as promulgated by defendant Orange County itself. 
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Further, as we observed above, the enabling legislation upon which defendants rely 

has been repealed. We find merit in plaintiffs’ submissions on this point and, 

consistent with our earlier determination on the operation of a perceived time 

limitation barring plaintiffs’ action on behalf of a certified class that such a limitation 

would have been eliminated due to the repeal of the enabling legislation, we do not 

find the commission of error on this issue by the trial court.

II. Discovery order

Along with their legal arguments to this Court, plaintiffs contemporaneously 

filed a “Motion to Dismiss Defendants’ Appeal from Discovery Order.” We agree with 

plaintiffs’ position in their motion that defendants’ effort to appeal the discovery 

ruling of the trial court contained in its 3 August 2018 Order is, at this stage in the 

litigation of the case, premature and hence must be dismissed for lack of appellate 

jurisdiction. 

Defendants have cited no basis or authority for this Court to review the trial 

court’s order wherein the trial court has compelled discovery regarding the 

production of fee receipts. Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 

(1999) (“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.”). Accordingly, we dismiss 

defendants’ appeal regarding the discovery portion of the trial court’s 3 August 2018

Order.
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Conclusion

We affirm the trial court’s order regarding class certification and dismiss 

defendants’ interlocutory appeal regarding the portions of the trial court’s order 

which pertain to discovery matters. All defenses which defendants may choose to 

employ at the trial level regarding plaintiffs’ claims are expressly reserved.

AFFIRMED IN PART; DISMISSED IN PART.