IN THE SUPREME COURT OF NORTH CAROLINA No. 168 A 16 Filed 9 June 2017 THOMAS A. STOKES, III

v. CATHERINE C. CRUMPTON (formerly Stokes)

Appeal pursuant to N.C.G.S. § 7A

- 30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 784 S.E.2d 537 (2016), dismissing an appeal from an order entered on 7 August 2014 by Judge Anna E. Worley in District Court, Wake County. On 22 September 2016, the Supreme Court allowed plaintiff’s petition for discretionary review of additiona l issues. Heard in the Supreme Court on 20 March 2017. Shanahan Law Group, PLLC, by Kieran J. Shanahan , Christopher S. Battles, and John E. Branch, III, for plaintiff

- appellant. Wyrick Robbins Yates & Ponton LLP, by Tobias S. Hampson, K. Edward Greene, and Robert A. Ponton, Jr. , for defendant

- appellee

. BEASLEY, Justice.

This case is about whether a trial court has discretion to order post

confirmation discovery in an action under the Family Law Arbitration Act and a party’s right to an interlocutory appeal of the trial court’s denial of such a motion. We hold that plaint iff had a right to appeal the trial court’s denial of his motion toS TOKES V
. C RUMPTON Opinion of the Court

2 engage in discovery and that the trial court has discretion to order post

- confirmation discovery in this case. Accordingly, we reverse the decision of the Court of Appeals and remand this case with instructions for the Court of Appeals to vacate the trial court’s order and remand the matter for reconsideration of plaintiff’s motion consistent with this opinion.
In April 2011, Thomas A. Stokes, III (plaintiff) and Catherine C. Stokes (now Crumpton ) (defendant) separated. Plaintiff filed an action in July 2011 seeking equitable distribution of the parties’ mar i tal assets and child support. Shortly thereafter, the parties agreed to arbitrate the action under North Carolina’s Family Law Arbi tration Act (FLAA), N.C.G.S. § § 50

- 4 1 to 50

- 62. On 1 3 August 2011 , the trial court entered a Consent Order to Arbitrate Equitable Distribution and Child Support. One of the main issues to be settled during arbitration was the value of defendant’s stake i n D rug Safety Alliance, Inc. (DSA) , 1 a company in which defendant was the President, CEO , and majority shareholder.
As part of the agreed

- upon pre - arbitration discovery, plaintiff’s counsel deposed defendant, seeking information, inter alia , on the val ue of DSA. During the deposition, defendant testified that she had “no intention of selling” DSA at that time, although she had been contacted by parties interested in purchasing the company.

1 DSA managed adverse event reporting for pharmaceutical, biotech, animal health, and over

- the

- counter dietary supplement companies.S TOKES V
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3 In response to questions regarding the possible sale, merger, or acquisition relating to DSA, defendant, for the most part, responded that she did not know or could not answer the question. During discovery, plaintiff’s valuation expert also interview ed defendant and specifically inquired about “any written or oral offers to purchase DSA ”; defendant said there were none. Plaintiff’s expert also requested production of docume nts from DSA, including buy

- sell agreements, written offers to purchase stock, and any major sale or purchase contracts. No such documents were ever produced.
On 18 May 2012, plaintiff and defendant entered into an Equitable Distribution Arbitration Award by Consent (the Award). That same day, the trial
court entered an order and judgment in District Court, Wake County, confirming the award. The Award, inter alia , distributed to defendant all stock held by her in DSA and any other interest claimed by either party in the company. In return, defendant would pay plaintiff a lump sum of $1,000,000.00, plus an additional $650,000.00 over a six y ear period. The entire balance would become immediately due and payable, however, if defendant sold her ownership interest in DSA.
Less than two months later, on 5 July 2012, defendant signed a Letter of Intent to sell DSA to another company, United Dru g, PLLC. In August 2012, United Drug purchased DSA for $28,000,000.00, of which defendant received approximatelyS TOKES V
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4 $14,000,000.00 for her shares. Plaintiff claims to have learned about the sale through the media, without any prior knowledge of it during ar bitration.
On 26 November 2012, plaintiff filed a Motion to Vacate Arbitration Award and Set Aside Order and Motion to Engage in Discovery. 2 Plaintiff’s motion was predicated on an allegation of fraud, that defendant “intentionally induced [p]laintiff
t o settle through misrepresentation and/or concealment of material facts related to the sale, possible sale, discussions, negotiations and existence of documents related to the possible sale of DSA to a third party.” Specifically, plaintiff alleged that de fendant intended to sell DSA while arbitration was under way and that she fraudulently induced plaintiff to accept a distribution of only $1,650,000.00 for DSA based on her representations about the company during arbitration. According to plaintiff, during arbitration “the parties were arguing over a valuation of the marital interest in DSA as being between approximately two and five million dollars” and eventually stipulated to a value of $3,485,000.00 for DSA. 3 Plaintiff contends that he never would have agreed to DSA’s value had defendant disclosed the sale opp ortunity.
As part of these motions, plaintiff requested leave “to conduct discovery regarding discussions, negotiations and activity by and involving [d]efendant and her

2 Plaintiff amended his motion on 13 December 2013 to clarify that the motions were brought under the FLAA.

3 As pointed out by defendant, the parties never stipulated to a value for DSA. Plaintiff contends, however, that the parties reached a mutual und erstanding as to DSA’s value prior to consenting to the Award.S TOKES V
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5 company DSA, its agents and United Drug and its agents that led to the July 5, 2012 Letter of Intent and subsequent sale of DSA to United Drug.” On 7 August 2014, the trial court entered an order denying plaintiff’s motion for leave to engage in discovery. The trial court concluded:

1. There is no pending action between Plaintiff and Defen dant in which discovery may be propounded. 2. Plaintiff’s Verified Motion to Vacate Arbitration Award is not a claim within which discovery may be conducted. Plaintiff’s [request for] written discovery is therefore inappropriate. 3. All of Plaintiff’s Motions t o Compel [Discovery] . . . should be denied. Plaintiff appealed to the Court of Appeals, which filed a divided opinion dismissing the appeal on 5 April 2016.
As a preliminary matter , the Court of Appeals addressed whether the trial court’s order denying discovery was immediately appealable as an interlocutory order. Sto kes v. Crumpton , ___ N.C. App. ___, ___, 784 S.E.2d 537, 539 (2016). Agreeing with defendant, the majority concluded that the order was not appealable under either the FLAA’s appeal provi sion, N.C.G.S. § 50

- 60 (201 5 ), or the substantial rights analysis of N.C.G.S. § 7A

- 27(b)(3)(a) (201 5 ). See id. at ___, 784 S.E.2d at 5 40

. In regards to the FLAA, the majority held that the discovery order did not fall under any of the types of orders enu merated in subsection 50

- 60(a) of the statute under which a right of appeal lies. Id. at ___, 784 S.E.2d at 540. Specifically, the majority also concluded that the order at issue here “is not a judgment” for purposes ofS TOKES V
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6 sub division 50

- 60(a)(6). Id. at _ __, 784 S.E.2d at 541. The majority then rejected plaintiff’s argument that he was separately entitled to appeal from the order under N.C.G.S. § 7A

- 27, which governs interlocutory appeals. Id. at ___, 784 S.E.2d at 541

- 42. The majority concluded that p laintiff “failed to demonstrate that he would be deprived of a substantial right without appellate review of the order before a final judgment has been entered,” as required under section 7A

- 27. Id. at ___, 784 S.E.2d
at 541

- 42.
The dissent disagreed wit h the majority’s conclusion that the discovery order was not immediately appealable. Id. at ___, 784 S.E.2d at 543 (Calabria, J., dissenting). Specifically, the dissent concluded that the order denying discovery was appealable under sub division 50

- 60(a)( 6), which the dissent deemed to be a “catch

all” provision that permits appeal from “[a] judgment entered pursuant to provisions of this Article.” Id. at ___, 784 S.E.2d at 543 . According to the dissent, “judgment” as used in this provision is not limite d to “final judgments,” but includes judgments that are interlocutory as well. Id. at ___, 784 S.E.2d at 543

- 44. The dissent also concluded that plaintiff had a right to appeal under section 7A

- 27 because plaintiff demonstrated that , if the order was not immediately reviewed, he would be deprived of a substantial right , consisting of any ability to prove the alleged fraud at the hearing on his motion to vacate , without some limited discovery. Id. at ___, 784 S.E.2d at 544

- 47.S TOKES V
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7 Next, the dissent disagreed with the trial court’s conclusion that “[t]here is no pending action between Plaintiff and Defendant in which discovery may be propounded.” Id. at ___, 784 S.E.2d at 546. According to the dissent, “plaintiff’s Motion to Vacate Arbitration Award and Set Aside Order based on allegations that the arbitration award was procured by fraud is pending.” Id. at ___, 784 S.E.2d at 546. In response, the majority addressed the pending action issue in a footnote, disagreeing with the diss ent’s interpretation and stating that “[i]t is correct that Plaintiff’s motion to vacate was pending, but the trial court concluded, and we agree, that the action

— the arbitration of the parties’ equitable distribution action

— had concluded, and the pending motion was ‘not a claim within which discovery may be conducted.’ ” Id. at ___ n.1, 784 S.E.2d at 539 n.1 (majority opinion)

. Plaintiff filed an appeal of right based on the dissenting opinion, and on 22 September 2016, this Court allowed plaintiff’s peti tion for discretionary review as to an additional issue. The issues before this Court are whether plaintiff has a right to appeal the trial court’s order and whether the trial court had discretion to award discovery in this case.

As a threshold matter w e consider whether plaintiff had a right to immediately appeal the trial court’s order denying discovery. We hold that he did.

P laintiff contends that the trial court’s interlocutory order may be appealed if it affects a substantial right, pursuant to N.C.G.S. § 7A

- 27(b)(3)(a), even if plaintiffS TOKES V
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8 has no right to appeal under the FLAA. 4 We agree. This Court has never explicitly addressed the interplay between appeals under an arbitration statute and section 7A

- 27. The Court of Appeals case law on this issue is unclear and somewhat contradictory. We take this opportunity to clarify the relationship between N.C.G.S. §§ 50

- 60 and 7A

- 27.

In Bluffs, Inc. v. Wysocki , 68 N.C. App. 284, 314 S.E.2d 291 (1984), the threshold issue before the court was whether there is an immediate right to appeal an order compelling arbitration under the Uniform Arbitration Act (UAA), which the court held did not exist . 68 N.C. App. at 28 6 , 314 S.E.2d at 29 3 . The court began its analysis by reviewing the bases for appeal enum erated in N.C.G.S. § 1

- 567.18(a) and concluding that an order compelling arbitration does not fall under the statute. Id. at 285, 314 S.E.2d at 29 2

- 9 3. After reaching this conclusion, the court then addressed whether the order affected a substantial right. Id. at 285

- 86, 314 S.E.2d at 293. Ultimately, the court held that an order compelling arbitration i s not appealable under either the UAA 5 or sect ion 7A

- 27. Id. at 28 5 , 314 S.E.2d at 29 3

.

4 Plaintiff did not argue to this Court that he had a right to appeal under the FLAA itself. Assuming arguendo that the majority at the Court of Appeals correctly determined that plaintiff d id not have a right to appeal under sub division 50

- 60 (a)(6) of the FLAA, we hold that plaintiff had a right to appeal the interlocutory order under N.C.G.S. § 7A

- 27 because the order affected a substantial right.

5 Although an order compelling arbitration is not appealable under the UAA, Wysocki , 68 N.C. App. at 285, 314 S.E.2d at 29 2

- 93 , the Revised UAA does provide a basis for appeal from an order denying a motion to compel arbitration, N.C.G.S. § 1

- 569.28(a)(1) (2015) (“An appeal may be taken from . . . [a]n order denying a motion to compel arbitration . . . .”).S TOKES V
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9 Subsequent Court of Appeals cases relying on Wysocki have followed a similar analytical framework

— conducting a substantial rights analysis under section 7A

- 27 after concluding that the order at issue did not fal l under the enumerated bases for appeal set out in the relevant arbitration statute. See, e.g. , Smith v. Shipman , 153 N.C. App. 200, 569 S.E.2d 34 , 2002 WL 31055991 (2002) (unpublished); N.C. Elec

. Membership Corp. v. Duke Power Co. , 95 N.C. App. 123, 381 S.E.2d 896, disc. rev. denied , 325 N.C. 709, 388 S.E.2d 461 (1989). Wysocki and its progeny do not explicitly address the relationship between appeals under an arbitration statute and interlocutory appeals under section 7A

- 27. Implicit in these cases, h owever, is support for the conclusion that a right to appeal can be based on section 7A

- 27 even if there is no right to appeal under the arbitration statute.
In the present case the Court of Appeals majority based its decision, in part, on the fact that the FLAA appeal provision does not include an order denying discovery as one of the enumerated bases for appeal

. Stokes , ___ N.C. App. at ___, 784 S.E.2d at 540. The majority in Stokes relied on Bullard v. Tall House Building , Co. , 196 N.C. App. 627, 676 S.E.2d 96 (200 9 ), quoting specifically the statement “that the list enumerated in [N.C.G.S.] § 1

- 569.28(a) includes the only possible routes for appeal under the [ Revised UAA].” Id. at ___, 784 S.E.2d at 540

- 41 (quoting Bullard , 196 N.C. App. at 635, 676 S.E.2d at 102) (emphasis added) ) . The court in Bullard concluded that the order was not appealable under the R evised UAA and then conducted a substantial right s analysis under section 7A

- 27. 196 N.C. App. at 635

-S TOKES V
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10 3 9 , 676 S.E.2d at 102

- 04. The court held that an order compelling arbitration : (1) was not appealable under the R evised UAA; and (2) did not impair a substantial right justifying immediate appeal under section 7A

- 27. Id . at 635

- 3 9 , 676 S.E.2d at 102

- 04.
Therefore, despite this quoted language, the court in Bullard followed the same analysis used in Wysocki and its progeny, further supporting the inference that an appeal can lie from either statute. Additionally, the Court of Appeals majority in this case similarly analyzed whether a substantia l right was affected by the trial court’s order, despite quoting Bullard and despite previously conclud ing that plaintiff had no right to appeal under the FLAA itself. Stokes , ___ N.C. App. at ___, 784 S.E.2d at 541

- 42. We hold that an appeal can be just ified under section 7A

- 27 even if there is no right to appeal under the relevant arbitration statute. To the extent Bullard suggests otherwise, it is abrogated.
Having determined that a substantial rights analysis under section 7A

- 27 may be conducted no twithstanding that no right to appeal lies under the arbitration statute itself, we turn now to whether the trial court’s order denying discovery to plaintiff in this case affected a substantial right justifying immediate appeal. We hold that the trial co urt’s order denying discovery affect ed a substantial right.
An interlocutory order is generally not immediately appealable unless the order “[a]ffects a substantial right, ” i d. § 7A

- 27(b)(3)(a). Sharpe v. Worland , 351 N.C.S TOKES V
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11 159, 161

- 62, 522 S.E.2d 577, 578

- 79 (1999) (discussing two avenues for immediate appeal of an interlocutory order, including N.C.G.S. § 7A

- 27 ) . Discovery orders are “generally not immed iately appealable because [they are ] interlocutory and do[ ] not affect a substantial right that wo uld be lost if the ruling were not reviewed before final judgment.” Id. at 163, 522 S.E.2d at 579 (citations omitted ). Such orders, however, are immediately appealable when “the desired discovery would not have delayed trial or have caused the opposing p arty any unreasonable annoyance, embarrassment, oppression or undue burden or expense, and if the information desired is highly material to a determination of the critical question to be resolved in the case.” Dworsky v. Travelers Ins. , 49 N.C. App. 446, 447

- 48, 271 S.E.2d 522, 523 (1980) (emphasis added) (citing Tenn.

- Carolina Transp., Inc. v. Strick Corp. , 291 N.C.
618 , 231 S.E.2d 597 (1977) ). In these situations, “an order denying such discovery does affect a substantial right and is appealable.” Id. at 4 48, 2 7 1 S.E.2d at 523 (citing Tenn

. - Carolina , 291 N.C. 618, 231 S.E.2d 597).
Here there is no dispute that the trial court’s order is interlocutory , as it was made while plaintiff’s motion to vacate was still pending. See Sharpe , 351 N.C. at 161, 52 2 S.E.2d at 578. As such , the interlocutory order must be shown to affect a substantial right in order to justify immediate appeal.
Plaintiff’s motion requested limited discovery in the form of information relating to the timeline, details, and discuss ions between DSA and United DrugS TOKES V
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12 regarding the August 2012 sale. This information is “highly material” to a determination on plaintiff’s motion to vacate based on allegations that defendant fraudulently concealed the true value of her share s in DSA. Gene rally, a motion to vacate an arbitration award based on fraud must be proved by clear and convincing evidence. See MCI Constructors, LLC v. City of Greensboro , 610 F.3d 849, 858 (4 th Cir. 2010) (stating that vacatur under the Federal Arbitration Act based on an allegation of “ undue means ” requires that the fraud or corruption be established by clear and convincing evidence); Trafalgar House Constr., Inc. v. MSL Enter s. , 128 N.C. App. 252, 25 7

- 5 9 , 494 S.E.2d 613, 61 7 (1998) (holding that the plaintiff failed to meet its burden of proof that grounds existed to vacate an arbitration agreement under the FAA on the basis of fraud ). Fraud is generally defined as “[a] knowing misrepresentation or knowing concealment of a material fact made to induc e another to act to his or her detriment.” Fraud , Black’s Law Dictionary (10 th ed. 2014). Due to the concealment and deception inherent in fraud, it is unlikely that plaintiff will be able to obtain information necessary to support his motion to vacate w ithout conducting some limited discovery. Thus, because the limited discovery requested by plaintiff is “highly material to a determination of the critical issue” in his motion to
vacate , the order denying discovery affects a substantial right justifying immediate appeal under N.C.G.S. § 7A

- 27(b)(3)(a). Dworsky , 49 N.C. App. at 448, 271 S.E.2d at 523 (citing Tenn.

- Carolina , 291 N.C. 618, 231 S.E.2d 597)

.S TOKES V
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13 Having determined that plaintiff had a right to immediately appeal the trial

c ourt’s order denying d iscovery, we reverse the Court of Appeals holding on this issue. W e now consider whether the trial court had the discretion to order discovery in the case at hand. We hold that it did.

Plaintiff contends that his motion to vacate the arbitration award u nder the FLAA is a pending action under which discovery may be propounded. We agree. Under the FLAA, “upon a party’s application, the court shall confirm an award, except when within time limits imposed under G.S. 50

- 54 . . . grounds are urged for vacati ng . . . the award, in which case the court shall proceed as provided in G.S. 50

- 54.” N.C.G.S. § 50

- 53(a) (201 5 ) (emphas e s added). Section 50

- 54 sets forth various

reasons for which “the court shall vacate an award,” including that “[t]he award was
procu red by corruption, fraud, or other undue means.” Id. § 50

- 54(a)(1) (2015) (emphasis added). A timely motion to vacate under section 50

- 54 predicated on corruption, fraud, or other undue means “ shall be made within 90 days after these grounds are known o r should have been known.” Id. § 50

- 54(b) (2015) . Plaintiff’s motion to vacate was timely filed, thus triggering the provisions of section 50

- 54.
Contrary to defendant’s contention, there is no law prohibiting the trial court from utilizing its discretion to order discovery in this case. The plain language of the FLAA itself provides a mechanism for vacating an arbitration award upon proof of fraud

. See id

. §§ 50

- 53,

- 54. As stated above, clear and convincing evidence is neededS TOKES V
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14 to succeed on a motion to vacate based on allegations of fraud. Given this high standard, and the concealment and deception inherent in fraud, p ost

- confirmation discovery naturally follows. Moreover, there is no provision of the FLAA that prohibits post

- confirmation discovery , and nothing within the statute limits section
50

- 54 solely to claims of fraud made pre

- confirmation.

Section 50

- 53 explicitly provides an alternat ive, mandatory path for courts to take if a timely motion to vacate is filed, in which event the court shall proceed according to section 50

- 54. Here there is no debate that plaintiff timely filed his motion to vacate based on an allegation of fraud. Def endant argues that this alternative path only applies in the pre

- confirmation context; nothing, however, in the language of sections 50

- 53 or 50

- 54 supports this conclusion. Reading an exception into the statute for post

- confirmation motions would appear to create a right without a remedy. We decline to limit the statute in such a manner without clear indication of the General Assembly’s intent.
Under the terms of the FLAA, a motion to vacate based on allegations of fraud disrupts the general process fo r confirming arbitration awards and creates a vehicle by which confirmed awards can be vacated. Accordingly, a motion to vacate under section 50

- 54 is pending because it seeks a remedy made available by the FLAA related to the underlying arbitration, to w hich plaintiff has availed himself.S TOKES V
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15 Therefore, the motion to vacate was a pending action under which the trial court had the discretion to order discovery.
We hold, therefore, that plaintiff had a right to appeal the trial court’s order denying discover y under the substantial right s analysis of N.C.G.S. § 7A

- 27(b)(3)(a), and that a right to appeal may exist under section 7A

- 27 even if the order is not appealable under the arbitration statute itself. Additionally, we hold that the trial court had discret ion to award discovery in this case because the action was pending pursuant to sections 50

- 53 and 50

- 54 of the FLAA. For the reasons stated, we reverse the decision of the Court of Appeals and remand this matter with instructions to the Court of Appeals to vacate the trial court’s order denying discovery and remand this case to the trial court for further consideration of plaintiff’s motion consistent with this opinion.

REVERSED AND REMANDED

.