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NORTH CAROLINA COURT OF APPEALS
31 December 2012
BRIAN Z. FRANCE,
No. 08 CVD 20661
MEGAN P. FRANCE,
Appeal by Plaintiff from order entered 18 December 2009 by
Heard in the Court of Appeals 25 September 2012.
Horack Talley Pharr & Lowndes, P.A., by Kary C. Watson and
Gena Graham Morris, and Alston & Bird, LLP, by John E.
Davis Harwell & Biggs, P.A., by Loretta C. Biggs and Joslin
Davis, and Robinson, Bradshaw & Hinson, P.A., by Martin L.
Higgins & Owens, PLLC, by Raymond E. Owens, Jr., for the
Charlotte Observer and WCNC, amicus curiae.
Brian France (“Plaintiff”) appeals from an order unsealing
documents associated with the actions in this case.
We find no
abuse of discretion in the order of the trial court, which finds
Therefore, we affirm the order of the trial
Plaintiff and Megan France (“Defendant”) have been married to
each other twice.
Each marriage lasted approximately two years.
Prior to their second marriage, on 27 December 2007, Plaintiff
Agreement”), replacing an earlier prenuptial agreement,
provided financial benefits to Defendant in consideration for
which Defendant agreed to abide by the terms of the Agreement.
The Agreement contained the following confidentiality provision:
Plaintiff and Defendant agreed that “neither
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 legally compelled to
disclose any such information[.]”
confidentiality provision would constitute a
material breach. In the final paragraph of
the confidentiality clause, Plaintiff and
that if either of them institutes
or responds to litigation that
relates to and requires disclosure
-3of any of the terms of th[e]
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.
France v. France, 209 N.C. App. 406, 407-08, 705 S.E.2d 399, 402
(2011) (alterations in original).
On 11 September 2008, Plaintiff filed a complaint (File No.
08 CVD 20661), alleging Defendant had breached the Agreement and
filed, and any future documents filed in the action.
court, Judge N. Todd Owens (“Judge Owens”) presiding, granted
Plaintiff’s motion to seal the documents associated with the
case in File No. 08 CVD 20661 and issued an order on 18 December
2. There is a compelling countervailing
public interest in protecting the privacy of
the parties as relates to the provisions of
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.
-4public interest in protecting the sanctity
of contracts such as the Agreement, where
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
interests in paragraphs 2 and 3 above
outweigh the public's interest in access to
the documents filed in this court proceeding
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.
Based on the foregoing, the trial court concluded:
The Clerk of Superior Court shall seal the
pleadings and other documents [and] [t]he
Clerk . . . is directed to file under seal
any pleadings and documents filed in any
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
Once sealed, such pleadings and documents
shall be accessible only to the District
Court, any appellate court, the parties,
attorneys for the parties and paralegals and
-5other staff members of such attorney, and
may be unsealed only by further order of the
amended complaint with a different file number, File No. 08 CVS
Therefore, the amended complaint necessarily disclosed the terms
breach of the confidentiality provision in the Agreement, but
for the fact that the amended complaint was filed under seal.
The parties filed a series of discovery and substantive
motions in the action
08 CVS 28389.
September 2009, in anticipation of hearings on the foregoing
Plaintiff in the motion to close proceedings.
The trial court,
foregoing motion to close proceedings, along with several other
motions, on 15 October 2009, after which Judge Culler denied the
Judge Owens’ 18 December 2008 order was not included in the
record on appeal; however, we have extracted the above excerpts
from Judge Owens’ order as they were recited in Judge Culler’s
-6motion to close proceedings.
Judge Culler entered a written
order on 13 November 2009 concluding that “[p]roceedings in this
following rationale for the decision:
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 also moved in open court for a stay, which was denied.
Plaintiff filed notice of appeal from this order.
requesting that Judge Culler (1) “[o]rder [that] the courtroom
remain open to the public and press in both 08 CVD 20661 and 08
CVD 28389” and (2) order that “the records and court files in
Movant’s motion on 11 December 2009.
In an order filed 18
December 2009, Judge Culler acknowledged both Judge Owens’ order
– which ordered that the pleadings and documents associated with
the action in File No. 08 CVD 20661 shall be sealed – and her
own order that the proceedings of the action in File No. 08 CVD
-7ordered that all “proceedings in 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 reasoned that there were “no
sufficient” to keep the court filings under seal, or to conduct
the proceedings in a closed courtroom.
Judge Culler further
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 case law[.]
On 21 December 2009, Plaintiff filed a notice of appeal from
Judge Culler’s 18 December 2009 order.
Plaintiff also filed a
motion to stay this order, which was denied.
On 22 December 2009, Plaintiff filed a motion in this Court
to stay Judge Culler’s 13 November 2009 and 18 December 2009
Our Court granted Plaintiff’s motion to stay “pending
determination of [Plaintiff’s] petition for writ of supersedeas”
by order entered 23 December 2009.
On 4 January 2010, our Court
-8granted Plaintiff’s petition for writ of supersedeas, and stayed
“pending further orders of this Court.”
On 1 February 2011, this Court issued an opinion, France,
209 N.C. App. 406, 705 S.E.2d 399, resolving the first appeal.
This Court concluded that “Plaintiff’s appeal of Judge Culler’s
first order on 13 November 2009 divested the trial court of
jurisdiction in the matter and jurisdiction transferred to this
Thus, Judge Culler’s second order is a nullity because
the trial court was without jurisdiction to hear the matter on
11 December 2009.”
Id. at 411, 705 S.E.2d at 404.
vacated the 18 December 2009 order.
first order did not rule that the pleadings and documents in
these actions should be unsealed, Judge Culler’s first order
does not impermissibly overrule Judge Owens’ order.”
412, 705 S.E.2d at 405.
This Court affirmed Judge Culler’s 13
November 2009 order, holding that the trial court did not err by
refusing to close the proceedings.
Id. at 417-18, 705 S.E.2d at
However, we noted 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.”
-9at 418, 705 S.E.2d at 408.
“Upon remand,” we stated, “the trial
court must determine how best to reconcile Judge Owens’ order
Culler’s first order [ruling that the proceedings in the action
shall remain open to the public].”
Id. at 418, 705 S.E.2d at
On 2 June 2011, the first hearing in this case following
court, the documents associated with the action would remain
under seal “as long as the Owens Order was in effect.”
Culler advised the parties that “while there would be occasions
when testimony or argument would make reference to documents in
the court files, ‘there should be no excessive reading aloud
reference to details in the [Agreement].’”
motion, urging the trial court to overrule Judge Owen’s order
and unseal the documents associated with 08 CVD 20661 and 08 CVD
While this motion was pending, Judge Culler entered an
order consolidating 08 CVD 20661 and 08 CVD 28389 into one case,
08 CVD 28389 (hereinafter, “the action”).
On 12 October 2011,
-10Judge Culler entered an order granting Media Movants motion to
unseal the documents associated with the action,2 reasoning that
Judge Owen’s order was void for two reasons:
(1) the trial
court lacked subject matter jurisdiction to enter the order,3 and
(2) the order violated the North Carolina Declaratory Judgment
Alternatively, Judge Culler based her decision to unseal
the documents on four material changes in circumstance.5
The trial court reserved the right, however, to seal future
Judge Culler stated that “trial court’s do not have subject
matter jurisdiction to enter orders governing separate actions”;
however, Judge Owens’ order “purported to seal the court files
in all future, and therefore not yet asserted actions.”
Judge Culler reasoned that “a declaratory judgment may only
decide the respective rights and obligations of adversary
parties[,]” and “[n]o declaration may prejudice the rights of
persons not parties to the proceedings”; however, Judge Culler
stated that the order entered by Judge Owens “purports to
prejudice the public’s right to access court files pursuant to
the United States and North Carolina Constitutions” and is
“outside the scope of the Declaratory Judgment Act.”
circumstance have occurred in this case:
(1) a substantial
change occurred when Plaintiff filed the amended complaint,
alleging an alternative claim for the rescission of the
Agreement because Plaintiff relied on the confidentiality
provision of the Agreement as the basis for his motion to seal
the documents associated with the action, and Judge Owen relied
on the confidentiality provision in the Agreement as the basis
for ordering that the documents be entered under seal; (2) a
substantial change occurred based on “the mere fact that Media
Movants filed their Access Motions”; (3) a substantial change
occurred when certain details concerning the Agreement were
discovered and published by various media outlets; (4) and a
substantial change occurred when this Court, according to Judge
Culler, “direct[ed] this case to proceed in an open courtroom.”
-11On 13 October 2011, Plaintiff filed a notice of appeal of
Judge Culler’s 12 October 2011 order overruling Judge Owens’ 18
December 2008 order and unsealing the documents associated with
Plaintiff also filed a motion for temporary stay
and a petition for writ of supersedeas in this Court.
October 2011, we granted Plaintiff’s motion for a stay, pending
entering the 12 October 2011 order unsealing the documents in
this action and overruling Judge Owens’ 18 December 2008 order
for the following reasons:
(1) the trial court failed to carry
out the mandate of this Court’s opinion in France, 209 N.C. App.
406, 705 S.E.2d 399; (2) the trial court lacked authority to
overrule Judge Owens’ 18 December 2008 order as one trial judge
cannot overrule another; (3) Judge Owens’ 18 December 2008 order
was not void, as the trial court had subject matter jurisdiction
to enter the order; (4) the order did not violate the North
Carolina Declaratory Judgment Act because the “public” is not a
Plaintiff also argues on appeal that the trial
court’s findings of fact in the 12 October 2011 are not based on
We affirm the order of the trial court.
We must first address the question of whether this appeal
from an interlocutory order is properly before the Court.
conclude it is.
“An interlocutory order is one made during the pendency of
an action, which does not dispose of the case, but leaves it for
determine the entire controversy.”
Veazey v. City of Durham,
231 N.C. 357, 362, 57 S.E.2d 377, 381, rehearing denied, 232
N.C. 744, 59 S.E.2d 429 (1950).
“Generally, there is no right
of immediate appeal from interlocutory orders and judgments.”
Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735,
However, “immediate appeal is available from an
Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577,
579 (1999) (citation and quotation marks omitted).
This Court has held in cases such as this that “[a]bsent
immediate review, documents that have been ordered sealed will
be unsealed, and proceedings will be held open to the public[;]
-13[b]ecause the only manner in which [a party] may prevent this
from happening is through immediate appellate review, we hold
that a substantial right . . .
N.C. App. at 411, 705 S.E.2d at 405 (citing Evans v. United
Servs. Auto. Ass’n, 142 N.C. App. 18, 23–24, 541 S.E.2d 782,
786, cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)).
We believe that here, as in the first appeal, a substantial
before the Court.
Standard of Review
“It is well established that where matters are left to the
discretion of the trial court, appellate review is limited to a
determination of whether there was a clear abuse of discretion.”
White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985).
“The judicial officer’s decision to seal . . . is subject to
Investigation into Death of Cooper, 200 N.C. App. 180, 186, 683
S.E.2d 418, 423 (2009), disc. review denied, 363 N.C. 855, 694
results where the court’s ruling is manifestly unsupported by
-14reason or is so arbitrary that it could not have been the result
of a reasoned decision.”
State v. Hennis, 323 N.C. 279, 285,
372 S.E.2d 523, 527 (1988).
Substantial Change in Circumstances
We first address Plaintiff’s argument that the trial court
erred in finding and concluding that there was a material change
in the circumstances of the parties, and as such, the trial
overruling Judge Owens’ 18 December 2008 order.
We conclude the
trial court did not err.
“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
France, 109 N.C. App. at 411-12, 705 S.E.2d 399, 405 (2011)
(quoting State v. Woolridge, 357 N.C. 544, 549, 592 S.E.2d 191,
-15parties from judge shopping.
Woolridge, 357 N.C. at 550, 592
“This rule does not apply to interlocutory orders given in
the progress of the cause[,] . . . [and] a judge does have the
power to modify an interlocutory order when there is a showing
of changed conditions which warrant such action.”
Carr v. Great
Lakes Carbon Corp., 49 N.C. App. 631, 633, 272 S.E.2d 374, 376
(1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981)
“However, when the judge rules as a matter
“One superior court judge may only
modify, overrule, or change the order of another superior court
discretionary, and (3) there has been a substantial change of
circumstances since the entry of the prior order.”
Crook v. KRC
Mgmt. Corp., 206 N.C. App. 179, 189, 697 S.E.2d 449, 456, cert.
denied, and disc. review denied, 364 N.C. 607, 703 S.E.2d 442
(2010) (citations and quotation marks omitted).
In this case, Judge Owens’ 18 December 2008 order stated
accessible only to the District Court, any appellate court, the
staff members of such attorney, and may be unsealed only by
parties.” (emphasis added).
Judge Owens’ order, itself, made an
allowance for the future unsealing of documents.
Court in France, 209 N.C. App. 406, 705 S.E.2d 399, did not
mandate that Judge Owens’ order remain undisturbed.
this Court held that “Judge Owens’ order must remain in effect
until and unless it is properly overturned[.]”
Id. at 417, 705
overturned[,]” required that Judge Culler only had authority to
Id. at 412, n.3, 705 S.E.2d at 405, n.3; see
also Morris v. Gray, 181 N.C. App. 552, 552–53, 640 S.E.2d 737,
circumstances in the situations of the parties so warrants, one
trial judge cannot modify, overrule, or change the judgment of
another, equivalent trial judge”).
“A substantial change in circumstances exists if since the
entry of the prior order, there has been an intervention of new
facts which bear upon the propriety of the previous order.
burden of showing the change in circumstances is on the party
entered by another judge.”
Crook, 206 N.C. App. at 189, 697
S.E.2d at 456 (citations and quotation marks omitted).
The trial court found several changes in circumstances in
its order in this case, including the following:
now seeks rescission of the Separation Agreement, which is the
document from which the order to seal the files is derived; (2)
the Media Movants are an intervening party and a member of the
regarding the actions have already been disclosed to the public
Appeals ordered that the case proceed in an open courtroom.
We believe the fourth finding of change in circumstance –
courtroom – is sufficient, alone, to warrant a reconsideration
of whether Judge Owens’ order sealing documents in the actions
was still proper.
We find no indication of abuse of discretion
in the trial court’s findings of fact.
The findings of fact are
conclusion of law that a change in circumstances has occurred.
-18affirm on this ground, it is not necessary for us to address
Plaintiff’s remaining arguments on appeal.6
Plaintiff also argues on appeal that the trial court erred in
disregarding the public’s compelling interest in preserving the
constitutionally protected rights of freedom to contract, remedy
for an injury incurred, and privacy.
claims that his rights to contract, right to a remedy in the
trial court for an injury he incurred, and his right to privacy
have been violated by the trial court’s order overruling Judge
These arguments were each addressed by France,
209 N.C. App. 406, 705 S.E.2d 399, and are res judicata.
Williams v. Peabody, __ N.C. App. __, __, 719 S.E.2d 88, 92
(2011) (stating that res judicata “prevents the relitigation of
all matters that were or should have been adjudicated in the
prior action”). With respect to Plaintiff’s breach of contract
claim, this Court stated in France that “Plaintiff’s right to
contract is in no way violated; we merely hold that Plaintiff
cannot, by contract, circumvent established public policy. . . .
Plaintiff must show some independent countervailing public
policy concern sufficient to outweigh the qualified right of
access to civil court proceedings. . . . 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 specific case.
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.
Certain kinds of
evidence may be such that the public policy factors in favor of
confidentiality outweigh the public policy factors supporting
free access of the public to public records and proceedings.”
France, 209 N.C. App. at 415-16, 705 S.E.2d at 407.
respect to Plaintiff’s argument pertaining to access to a remedy
for an injury he incurred, this Court stated in France that
“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[,] [and]
[a]gain, if Plaintiff succeeds in his primary action for
contained in the Agreement will no longer have any effect.” Id.
at 417, 705 S.E.2d at 408. With respect to Plaintiff’s right to
Judges McGEE and BEASLEY concur.
privacy claim, this Court stated in France that “Plaintiff’s
claim that his ‘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.” Id.