NORTH CAROLINA COURT OF APPEALS
Filed: 1 February 2011
BRIAN Z. FRANCE,
Nos. 08 CVD 20661
08 CVD 28389
MEGAN P. FRANCE,
Appeals by Plaintiff from orders entered 13 November 2009
(COA10-313) and 18 December 2009 (COA10-425) by Judge Jena P.
Culler in District Court, Mecklenburg County.
of Appeals 28 September 2010.
Heard in the Court
Pursuant to N.C.R. App. P. 40, these
cases were consolidated for hearing as the issues presented by
Plaintiff's appeals to this Court involve common questions of law.
Horack Talley Pharr & Lowndes, P.A., by Kary C. Watson and
Gena Graham Morris; and Alston & Bird, LLP, by John E.
Stephenson, Jr., for Plaintiff-Appellant.
Davis & Harwell, P.A., by Joslin Davis and Loretta C. Biggs,
K&L Gates LLP, by Raymond E. Owens, Jr. and Christopher
C. Lam, for Media Movants.
Plaintiff and Defendant entered into a Contract of Separation,
Property Settlement, Child Support, Child Custody and Alimony
provisions of the Agreement concerned confidentiality.
and Defendant agreed that "neither party [would] disclose any
-2financial information relating to the other party or any provision
of th[e] Agreement to anyone except" certain professionals, such as
their attorneys and financial advisors, unless compelled by law.
Plaintiff and Defendant further agreed to keep private certain
personal information regarding each other "unless either party is
Agreement stated that breach of the confidentiality provision would
constitute a material breach.
In the final paragraph of the
confidentiality clause, Plaintiff and Defendant agreed
that if either of them institutes or responds
to litigation that relates to and requires
disclosure of any of the terms of th[e]
Agreement, [Plaintiff and Defendant] agree to
use their best efforts so that any reference
to the terms of th[e] Agreement and the
Agreement itself will be filed under seal,
with prior notice to the other party.
Plaintiff filed a complaint against Defendant on 11 September
2008, 08 CVD 20661, seeking an order directing the Mecklenburg
County Clerk of Superior Court to seal Plaintiff's complaint and
any future pleadings and documents filed in that action. Plaintiff
amended his complaint on 17 September 2008.
Judge N. Todd Owens
issued an order (Judge Owens' order) on 18 December 2008 in which
The Clerk of Superior Court shall seal the
pleadings and other documents [and] [t]he
Clerk . . . is directed to file under seal any
subsequent actions between the parties related
to the Agreement [and all such pleadings,
documents, and orders] may be unsealed only by
further order of the [c]ourt, after reasonable
notice to the parties.
-3Judge Owens based his ruling on conclusions of law1 that:
2. There is a compelling countervailing public
interest in protecting the privacy of the
parties as relates to the provisions of the
Agreement concerning their young children and
their financial affairs, and in avoiding
damage or harm to the parties, their business
interests, and their children which could
result from public access to such provisions
of the Agreement.
3. There is a compelling countervailing public
interest in protecting the sanctity of
contracts such as the Agreement, where people
bargain for and agree upon a mechanism to
resolve future disputes in a confidential
manner and other contract terms which are not
contrary to law, and where each party relies
on the other party to perform his or her
obligations under the contract.
interests in paragraphs 2 and 3 above outweigh
the public's interest in access to the
documents filed in this court proceeding and
in future proceedings between the parties
concerning the Agreement.
5. The Court has considered whether there are
alternatives to sealing the court files in
order to protect the public interests referred
to in paragraphs 2 and 3 above, and finds
there are no such alternatives.
Plaintiff then filed a new complaint, under seal, on 31
December 2008 (the complaint), 08 CVS 28389, in which Plaintiff
alleged Defendant had violated certain terms of the Agreement,
Though not labeled "conclusions of law" in Judge Owens'
order, we look past the labels and treat conclusions as
conclusions. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404,
409 (2007) ("If a finding of fact is essentially a conclusion of
law it will be treated as a conclusion of law which is reviewable
on appeal." (citations, quotation marks, ellipses, and brackets
-4referenced Judge Owens' order and incorporated it in the complaint.
Plaintiff's first claim for relief was for rescission of the
Agreement, which, we note, would render void the confidentiality
Plaintiff's alternate claims for relief were for specific
performance and breach of contract.
Defendant filed an answer,
affirmative defenses, and counterclaim on 5 March 2009.
Plaintiff filed motions to seal the proceedings and for a
preliminary injunction on 29 September 2009.
These motions were
heard before Judge Jena P. Culler on 15 October 2009.
joined Plaintiff in seeking to have the proceedings in the action
By order filed 13 November 2009 (Judge Culler's first
order), Judge Culler denied both Plaintiff's motion to close the
proceedings and Plaintiff's motion for a preliminary injunction.
Judge Culler further ordered: "Proceedings in this case shall be
conducted in open court."
Judge Culler based her ruling on her
conclusion of law that: "Although both parties affirmatively sought
the relief of closing the court proceedings in this litigation,
there are no compelling countervailing public interests as related
to these parties which outweigh the public's right and access to
open court proceedings."
Plaintiff appealed Judge Culler's first
order on 13 November 2009.
The Charlotte Observer Publishing Company and WCNC-TV, Inc.
(Media Movants) filed a motion to determine access to judicial
proceedings and documents in these matters on 17 November 2009,
whereby they requested that Judge Culler "[o]rder [that] the
courtroom remain open to the public and press in both 08 CVD 20661
-5and 08 CVD 28389" and that she also order that "the records and
court files in both [actions] be unsealed[.]"
Media Movant's motion on 11 December 2009.
acknowledged Judge Owens' order.
Judge Culler heard
In an order filed 18
In Judge Culler's second order,
she stated that she had previously ordered the proceedings to be
connection with 08 CVD 20661 shall be open to the public [and that]
the court has already ordered that all courtroom proceedings in
connection with 08 CVD 28389 shall be open, and that order has been
appealed [and that all court files relating to both 08 CVD 20661
and 08 CVD 28389] shall be unsealed."
Judge Culler based her
rulings on conclusions of law that there were "no compelling
countervailing public or governmental interest[s] sufficient" to
keep the court filings under seal, or to conduct the proceedings in
a closed courtroom.
Judge Culler further concluded that:
4. There [are] no compelling countervailing
public or governmental interest[s] to be
protected as it relates to the parties that
presumptive right to open courts as espoused
in the North Carolina Constitution, North
Carolina statutory law, . . . and the related
Judge Culler's second order was to be "effective at 12:00 p.m. on
December 31, 2009."
Plaintiff filed notice of appeal from Judge
Culler's second order on 21 December 2009 and also filed a motion
to stay Judge Culler's second order.
In an order entered that same
day, Judge Culler denied Plaintiff's motion to stay.
filed 22 December 2009, Plaintiff moved our Court to stay Judge
-6Culler's first and second orders.
By order entered 23 December
determination of [Plaintiff's] petition for writ of supersedeas."
On 4 January 2010, our Court granted Plaintiff's petition for writ
of supersedeas, and stayed implementation of Judge Culler's first
and second orders "pending further orders of this Court."
Plaintiff's Second Appeal (COA10-425)
Plaintiff appealed Judge Culler's first order on 13 November
As our Court held in RPR & Assocs. v. University of
N.C.-Chapel Hill, 153 N.C. App. 342, 346-47, 570 S.E.2d 510, 513-14
[a]s a general rule, once a party gives notice
of appeal, such appeal divests the trial court
of its jurisdiction, and the trial judge
becomes functus officio. See Bowen v. Motor
Co., 292 N.C. 633, 635, 234 S.E.2d 748, 749
(1977); Sink v. Easter, 288 N.C. 183, 197, 217
S.E.2d 532, 541 (1975).
which translates from Latin as "having
performed his o[r] her office," is defined as
being "without further authority or legal
competence because the duties and functions of
the original commission have been fully
accomplished." Thus, when a court is functus
officio, it has completed its duties pending
the decision of the appellate court.
principle of functus officio stems from the
general rule that two courts cannot ordinarily
have jurisdiction of the same case at the same
See Wiggins v. Bunch, 280 N.C. 106,
110, 184 S.E.2d 879, 881 (1971).
It follows from the principle of functus
officio that if a party appeals an immediately
appealable interlocutory order, the trial
court has no authority, pending the appeal, to
Judge Culler's second order was entered on 18 December 2009,
following a hearing that was held 11 December 2009.
-7appeal of Judge Culler's first order on 13 November 2009 divested
the trial court of jurisdiction in the matter2 and jurisdiction
transferred to this Court.
Thus, Judge Culler's second order is a
nullity because the trial court was without jurisdiction to hear
the matter on 11 December 2009.
See Hall v. Cohen, 177 N.C. App.
456, 458, 628 S.E.2d 469, 471 (2006) ("As a general rule, an
appellate court's jurisdiction trumps that of the trial court when
one party files a notice of appeal unless the case has been
remanded from the appellate court for further determination in the
trial court.") (Citations omitted). We therefore must vacate Judge
Culler's second order.
RPR & Assocs., 153 N.C. App. at 346-47, 570
S.E.2d at 513-14.
Plaintiff's First Appeal (COA10-313)
We first note that Plaintiff attempts to appeal from an
interlocutory order because Judge Culler's first order does not
finally dispose of all issues in these actions.
143 N.C. App. 162, 164, 545
Embler v. Embler,
S.E.2d 259, 261 (2001).
. . . when the challenged order affects a substantial right of the
appellant that would be lost without immediate review."
165, 545 S.E.2d at 261 (citations omitted).
review, documents that have been ordered sealed will be unsealed,
and proceedings will be held open to the public.
Because the only
We hold below that Judge Culler's first order was
immediately appealable. See RPR & Assocs., 153 N.C. App. at 347,
570 S.E.2d at 514.
-8manner in which Plaintiff may prevent this from happening is
through immediate appellate review, we hold that a substantial
right of Plaintiff is affected by Judge Culler's first order and
thus immediate appeal is proper in this case.
See Evans v. United
Servs. Auto. Ass'n, 142 N.C. App. 18, 23-24, 541 S.E.2d 782, 786
It is well established that one trial court judge may not
overrule another trial court judge's conclusions of law when the
same issue is involved. "'[N]o appeal lies from one Superior Court
judge to another; . . . one Superior Court judge may not correct
another's errors of law; and . . . ordinarily one judge may not
modify, overrule, or change the judgment of another Superior Court
judge previously made in the same action.'"
State v. Woolridge,
357 N.C. 544, 549, 592 S.E.2d 191, 194 (2003) (citation omitted).
In the present case, Judge Owens ruled as a matter of law that:
outweigh the public's interest in access to the documents filed in
court proceedings between the parties concerning the Agreement."
In Judge Culler's first order, Judge Culler ruled as a matter of
law that "there are no compelling countervailing public interests
as related to these parties which outweigh the public's right and
access to open court proceedings."
Based upon this conclusion of
proceedings, and ordered that the matter proceed in open court.
Though Judge Owens and Judge Culler were required to conduct
the same legal analysis in making their respective rulings, the
-9factual situations before them were different.
Judge Owens' order
is limited to a ruling that all pleadings and documents in any
action related to the Agreement be sealed.
Judge Culler's first
order is limited to a ruling that the actual court proceedings, and
the courtroom, remain open to the public.
Judge Culler's first
order did not address the pleadings and other documents related to
the actions before us.
Because Judge Culler's first order did not
rule that the pleadings and documents in these actions should be
overrule Judge Owens' order.3
See State v. Woolridge, 357 N.C.
544, 549-50, 592 S.E.2d 191, 194-95 (2003); Adkins v. Stanly County
Bd. of Educ., __ N.C. App. __, 692 S.E.2d 470 (2010).
have held that Judge Culler was without jurisdiction to enter her
second order, we do not address Judge Culler's apparent attempt to
modify, overrule, or change the judgment rendered in Judge Owens'
We must now decide whether Judge Culler was correct in ruling
that "there are no compelling countervailing public interests as
related to these parties which outweigh the public's right and
We do not believe the portion of Judge Owens' order
stating that the documents in the case "may only be unsealed by
further order of the [c]ourt" provided Judge Culler authority to
overrule Judge Owens' conclusions of law absent a finding of
changed circumstances. See Morris v. Gray, 181 N.C. App. 552,
552-53, 640 S.E.2d 737, 738 (2007) ("Unless a material change of
circumstances in the situations of the parties so warrants, one
trial judge cannot modify, overrule, or change the judgment of
another, equivalent trial judge.") (citation omitted).
-10access to open court proceedings."
Our Supreme Court has stated:
"The paramount duty of the trial judge is to
supervise and control the course of the trial
so as to prevent injustice."
though court records may generally be public
records under N.C.G.S. § 132-1, a trial court
may, in the proper circumstances, shield
portions of court proceedings and records from
the public; the power to do so is a necessary
power rightfully pertaining to the judiciary
as a separate branch of the government, and
the General Assembly has "no power" to
diminish it in any manner. N.C. Const. art.
IV, § 1[.] This necessary and inherent power
of the judiciary should only be exercised,
however, when its use is required in the
interest of the proper and fair administration
of justice or where, for reasons of public
policy, the openness ordinarily required of
our government will be more harmful than
Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 463,
515 S.E.2d 675, 685 (1999) (internal citations omitted) (emphasis
Our General Assembly may, however, dictate "by statute
that certain documents will not be available to the public[.]" Id.
at 473, 515 S.E.2d at 691 (citations omitted) (emphasis added).
Our General Assembly has the right to make a determination that
public interests outweigh both the common law right to inspect
public records, see id., and the Public Records Act, N.C. Gen.
Charlotte-Mecklenburg Hosp. Auth., 172 N.C. App. 486, 489-91, 616
S.E.2d 602, 605-06 (2005).
Our General Assembly has made the
policy decision that certain kinds of otherwise public records
shall be shielded from public scrutiny.
See, e.g., Virmani, 350
N.C. at 473, 515 S.E.2d at 691 ("proceedings of a medical review
committee and the records and materials produced and considered by
-11such a committee 'shall be confidential and not considered public
records'"); Knight, 172 N.C. App. at 491, 616 S.E.2d at 606
(certain personnel records of public hospital employees exempt from
Public Records Act); McCormick v. Hanson Aggregates Southeast,
Inc., 164 N.C. App. 459, 469-70, 596 S.E.2d 431, 437-38 (2004)
(certain written communications from an attorney representing a
governmental body to that governmental body not subject to public
access for three years pursuant to the Public Records Act); id. at
471 n. 4, 596 S.E.2d at 438 n. 4 (work product of the Office of the
North Carolina Attorney General is not a public record).
"Article I, Section 18 [of the North Carolina Constitution]
provides the public access to our courts."
Virmani, 350 N.C. at
475, 515 S.E.2d at 693 (citations omitted). "Article I, Section 18
constitutional right on the part of the public to attend civil
Id. at 476, 515 S.E.2d at 693.
"We begin with
the presumption that the civil court proceedings and records at
issue in this case must be open to the public, including the news
media, under Article I, Section 18."
Id. at 477, 515 S.E.2d at
The qualified public right of access to civil
court proceedings guaranteed by Article I,
Section 18 is not absolute and is subject to
reasonable limitations imposed in the interest
of the fair administration of justice or for
other compelling public purposes.
although the public has a qualified right of
access to civil court proceedings and records,
the trial court may limit this right when
there is a compelling countervailing public
interest and closure of the court proceedings
or sealing of documents is required to protect
-12such countervailing public interest.
performing this analysis, the trial court must
consider alternatives to closure. Unless such
an overriding interest exists, the civil court
proceedings and records will be open to the
Where the trial court closes
proceedings or seals records and documents, it
must make findings of fact which are specific
enough to allow appellate review to determine
whether the proceedings or records were
required to be open to the public by virtue of
the constitutional presumption of access.
Id. at 476-77, 515 S.E.2d at 693 (internal citations omitted).
"'[U]nder the common law the decision to grant or deny access is
"left to the sound discretion of the trial court, a discretion to
be exercised in light of the relevant facts and circumstances of
the particular case."'" In re Search Warrants Issued in Connection
with the Investigation into the Death of Nancy Cooper, __ N.C. App.
__, __, 683 S.E.2d 418, 425 (2009) (citations omitted).
proceedings and records at issue in this case must be open to the
public, including the news media, under Article I, Section 18[,]"
Virmani, 350 N.C. at 477, 515 S.E.2d at 693, we find no abuse of
the trial court's discretion in ruling that Plaintiff failed to
overcome this presumption by demonstrating that the public's right
to open proceedings was outweighed by a countervailing public
Plaintiff argues that the qualified right to open court
proceedings is outweighed by his constitutional right to contract,
the right to seek redress for injury, and "the right of privacy in
matters related to minor children and . . . personal and financial
In his argument concerning his right to contract, Plaintiff
-13states that "unless a contract is contrary to public policy or
prohibited by statute, the freedom to contract requires that it be
See Turner v. Masias, 36 N.C. App. 213, 217, 243 S.E.2d
401, 404 (1978)." We hold that if the Agreement requires automatic
and complete closure of the proceedings in this matter, then the
Agreement is in violation of public policy – the qualified public
right of access to civil court proceedings guaranteed by Article I,
Were we to adopt Plaintiff's position, any civil
proceeding could be closed to the public merely because any party
involved executed a contract with a confidentiality clause similar
to that contained in the Agreement in this matter.
right to contract is in no way violated; we merely hold that
Plaintiff cannot, by contract, circumvent established public policy
– the qualified public right of access to civil court proceedings.
Plaintiff must show some independent countervailing public policy
concern sufficient to outweigh the qualified right of access to
civil court proceedings.
Plaintiff's position would also render meaningless provisions
Virmani, 350 N.C. at 462-63, 515 S.E.2d at 685 (Transcripts of
civil court proceedings are public records under the Public Records
"The term 'public records,' as used in N.C.G.S. § 132-1,
includes all documents and papers made or received by any agency of
North Carolina government in the course of conducting its public
N.C.G.S. § 132-1(a) (1995).
The public's right of
access to court records is provided by N.C.G.S. § 7A-109(a), which
-14specifically grants the public the right to inspect court records
in criminal and civil proceedings. N.C.G.S. § 7A-109(a) (1995).").
Further, the contract states that Plaintiff and Defendant will "use
their best efforts so that any reference to the terms of th[e]
Agreement and the Agreement itself will be filed under seal[.]"
Defendant to use best efforts to obtain a closed proceeding.
We hold that, in the present case, the trial court was correct
to determine whether proceedings should be closed based upon the
nature of the evidence to be admitted and the facts of this
Evidence otherwise appropriate for open court may
not be sealed merely because an agreement is involved that purports
to render the contents of that agreement confidential.
kinds of evidence may be such that the public policy factors in
See, e.g., N.C. Gen. Stat. § 15-166 (2009) ("In the
trial of cases for rape or sex offense or attempt to commit rape or
attempt to commit a sex offense, the trial judge may, during the
taking of the testimony of the [victim], exclude from the courtroom
all persons except the officers of the court, the defendant and
those engaged in the trial of the case."); N.C. Gen. Stat. §
48-2-203 (2009) ("A judicial hearing in any proceeding pursuant to
this Chapter [adoption of a minor child] shall be held in closed
court."); N.C. Gen. Stat. § 66-156 (2009) ("In an action under this
-15reasonable steps which may include granting protective orders in
connection with discovery proceedings, holding in-camera hearings,
sealing the records of the action subject to further court order,
and ordering any person who gains access to an alleged trade secret
during the litigation not to disclose such alleged trade secret
without prior court approval."); Virmani, 350 N.C. at 478, 515
S.E.2d at 694 ("The public's interest in access to these court
proceedings, records and documents is outweighed by the compelling
public interest in protecting the confidentiality of medical peer
review records in order to foster effective, frank and uninhibited
exchange among medical peer review committee members."); Knight,
172 N.C. App. at 495, 616 S.E.2d at 609 ("Whatever the General
Assembly's policy considerations, the language employed by the
General Assembly shows that it was concerned about protecting the
confidentiality of public hospital personnel information, thereby
disclosure of traditionally confidential records pursuant to the
Public Records Act.
See, e.g., Carter-Hubbard Pub'lg Co. v. WRMC
Hosp. Operating Corp., 178 N.C. App. 621, 628, 633 S.E.2d 682, 687
(2006) (contracts between public hospitals and HMOs may be required
Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 14, 639
S.E.2d 96, 104-05 (2007) (files and work product of city attorney
-16may be required to be disclosed pursuant to the Public Records
Plaintiff points to no statutory support for any contention
that the Agreement should be excepted from the Public Records Act,
and we find none.
The two additional reasons Plaintiff gives in support of
closing the courtroom fail to implicate reasons of public policy
sufficient to override the qualified public policy right of open
First, Plaintiff fails to show that the decision to
deny Plaintiff's request for closed proceedings will deny Plaintiff
"redress in the court for an injury done to him."
Plaintiff has in
no manner been prevented from proceeding with his action.
if Plaintiff succeeds in his primary action for rescission of the
Agreement, the confidentiality clause contained in the Agreement
will no longer have any effect.
Further, as we have held that
Judge Owens' order must remain in effect until and unless it is
properly overturned, the contents of the Agreement must remain
sealed and confidential upon remand.
Plaintiff can demonstrate no
"constitutional right of privacy, particularly with respect to
matters surrounding the parenting of minor children," will be
violated is without merit, and Plaintiff fails to show that any
such right to privacy outweighs the qualified right of the public
to open proceedings.
Plaintiff cites no authority in support of
his claim that any "compelling interest" exists to close the
proceedings in the present case for the protection of his children,
-17especially as Plaintiff argues that the entire proceeding should be
closed, not just the portions involving information concerning his
While a trial court may close proceedings to
protect minors in certain situations, such as where a child is
testifying about alleged abuse that child has suffered, or adoption
proceedings, N.C.G.S. § 48-2-203, we can find no case supporting
the closing of an entire proceeding merely because some evidence
relating to a minor child would be admitted.
We hold that it is
the province of the trial court to determine when a proceeding will
be closed to protect a minor child, absent a specific statutory
mandate such as in N.C.G.S. § 48-2-203.
In most instances, a proceeding will only be closed during the
testimony of the minor child.
Plaintiff has presented nothing on
appeal demonstrating that the trial court abused its discretion by
denying Plaintiff's motion to close the proceeding merely because
some evidence concerning his minor children could be admitted. If,
during the course of a proceeding, the trial court determines that
any part of the proceeding should be closed to protect a minor
child, the trial court remains free to make that determination. We
hold that the trial court did not abuse its discretion in denying
Plaintiff's motion to close the proceeding to the public, which
included the media.
Even assuming arguendo that the United States Supreme Court
would hold that no qualified First Amendment right of public access
applies to civil cases, see Virmani, 350 N.C. at 482, 515 S.E.2d at
697, we hold that Plaintiff has not shown that any of his federal
-18constitutional rights have been violated by Judge Culler's first
The trial court did not err by refusing to close the
We therefore affirm Judge Culler's first order.
note, however, that Judge Owens' order remains in effect, and the
trial court must conduct the proceedings in a manner which will not
run counter to Judge Owens' order.
Upon remand, the trial court
must determine how best to reconcile Judge Owens' order with Judge
Culler's first order.
Affirmed in part, vacated in part and remanded.
Judges HUNTER, JR. and BEASLEY concur.