Wilson v. Wilson , 124 N.C. App. 371 ( 1996 )

477 S.E.2d 254 (1996)

Darrell Reid WILSON,
v.
Dorothy Reid WILSON,
In the Matter of William C. Crews, III, Proposed Deponent.

No. COA95-1364.

Court of Appeals of North Carolina.

November 5, 1996.

Max D. Ballinger, Greensboro, for proposed non-party deponent appellant.

No brief filed for plaintiff appellee.

ARNOLD, Chief Judge.

We must first determine whether Crews appeals interlocutory orders that are not immediately appealable. "As a general rule, an order compelling discovery is not immediately appealable because it is interlocutory and does not affect a substantial right which would be lost if the ruling is not reviewed before final judgment." Benfield v. Benfield, 89 N.C.App. 415, 418, 366 S.E.2d 500, 502 (1988); see generally N.C. Gen.Stat. § 5A-24 (1986); G.S. § 7A-27 (1995). Nevertheless,

when a civil litigant is adjudged to be in contempt for failing to comply with an earlier discovery order, the contempt proceeding is both civil and criminal in nature and the order is immediately appealable for the purpose of testing the validity both of the original discovery order and the contempt order itself where, as here, the contemnor can purge himself of the adjudication of contempt only by, in effect, complying with the discovery order of which he essentially complains.

Willis v. Duke Power Co., 291 N.C. 19, 30, 229 S.E.2d 191, 198 (1976).

In this case, Crews may purge himself only by complying with the order to appear at deposition in Forsyth County, of which he complains. The contempt order, and the underlying order upon which the contempt order is based, are therefore immediately appealable.

Crews asserts multiple assignments of error, but we find merit in his appeal by addressing only two determinative jurisdictional issues. First, we find that the Davidson County District Court lacked jurisdiction to enter the 22 August 1995 order, and therefore the contempt order based on Crews's failure to obey that underlying order is void.

Under Rule 30 of the North Carolina Rules of Civil Procedure, a deponent who resides in North Carolina "may be required to attend for examination by deposition only in the county wherein he resides or is employed or transacts his business in person." N.C. Gen.Stat. § 1A-1, Rule 30(b)(1) (Supp. 1995). Moreover, Rule 45 provides:

Proof of service of a notice to take a deposition as provided in Rules 30(a) and 31(a) constitutes a sufficient authorization for the issuance by the clerk of the superior court for the county in which the deposition is to be taken of subpoenas for the persons named or described therein.

G.S. § 1A-1, Rule 45(d)(1) (1990); id., Comment ("[I]n section (d) the idea is that the subpoena shall issue from the court of the county where the deposition is to be taken."); see also Cochran v. Cochran, 93 N.C.App. 574, 578, 378 S.E.2d 580, 583 (1989) ("[I]n order to compel the deposition testimony of a nonparty, a subpoena must be issued from the county in which the deposition is to be taken.").

The uncontradicted evidence in the record shows that at all relevant times Crews resided, lived, was employed, and transacted his business in Guilford County. Under Rule 30(b)(1), Crews may be compelled to appear at a deposition only in Guilford County. Moreover, under Rule 45(d)(1), the Forsyth County Superior Court is the only court with jurisdiction to issue a subpoena for Crews to appear at a deposition in Forsyth County. The subpoena directing Crews to appear at the 27 April 1995 deposition in Forsyth County, however, was issued by the Davidson County District Court. The Davidson County District Court, therefore, lacked jurisdiction to find Crews in contempt of its erroneous subpoena to appear for a deposition in Forsyth County on 27 April 1995, and it likewise lacked jurisdiction to compel Crews, by order of 22 August 1995, to appear at a newly scheduled deposition on 28 August 1995 in Forsyth County.

In Harding v. Harding, 46 N.C.App. 62, 64, 264 S.E.2d 131, 132 (1980), this Court held that "it is not contempt to disobey an order entered by a court without jurisdiction...." See also In re Smith, 301 N.C. 621, 633, 272 S.E.2d 834, 842 (1981) ("Disobedience of an order made without, or in excess of, jurisdiction is not punishable as contempt."). As we found above, the Davidson County District Court lacked jurisdiction to enter the 22 August 1995 order, and consequently, it was not contempt for Crews to disobey that order. The contempt order, therefore, is void.

Second, we conclude that after Crews filed notice of appeal to this Court for the 22 August 1995 order, the Davidson County District Court lacked jurisdiction to enter the 8 September 1995 contempt order based upon Crews's failure to comply with the appealed order. On 1 September 1995, Crews filed a notice of appeal to this Court from the 22 August 1995 order. He also filed a document entitled "NOTICE" indicating his reasons for not complying with the 22 August 1995 order, including the fact that he had filed a notice of appeal from that order.

N.C. Gen.Stat. § 1-294 (1983) provides:

When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.

This statute operates to stay the 22 August 1995 order against Crews, who is a non-party deponent in this action. Accordingly, we hold that the Davidson County District Court was without jurisdiction, pending the appeal, to find Crews in contempt of the order appealed from, and its findings and order to that effect are void.

For the several reasons stated above, we find that the Davidson County District Court lacked jurisdiction to enter the orders with reference to the 19 August 1995 and 6 September 1995 hearings. These orders are

Vacated.

JOHNSON and GREENE, JJ., concur.