McKinley Building Corp. v. Alvis

645 S.E.2d 219, 183 N.C. App. 500, 2007 N.C. App. LEXIS 1158

Opinions

JACKSON, Judge.

On 20 July 2004, McKinley Building Corporation (“plaintiff’) filed a complaint against Danny Alvis individually (“defendant Alvis”) and Danny Alvis d/b/a Battlecat Concrete (collectively, “defendants”) for defective construction. Specifically, plaintiff contended that defendants performed defective work as the subcontractor responsible for placing and finishing concrete footings and slabs at the Mayfair Town Center in Wilmington, North Carolina. Plaintiff further alleged that he was forced to hire another subcontractor at $60,950.00 to bring defendants’ work into compliance with the specifications of the contract between plaintiff and defendants.

The parties arbitrated their dispute on 26 January 2005, and the arbitrator awarded no compensation to plaintiff. On 24 February 2005, plaintiff filed a request for trial de novo. On 14 April 2005, plaintiff served defendants requests for admissions, and after receiving no response, plaintiff filed a motion for summary judgment on 1 July 2005. Defendants moved for a continuance and the summary judgment hearing was continued to 19 September 2005. On 23 September 2005, the trial court granted plaintiff’s motion for summary judgment in the amount of $59,343.91, with interest from the date of filing, along with $8,901.58 in attorneys’ fees and costs.

On 15 December 2005, defendants filed a motion to stay execution and for relief from the judgment pursuant to Rule 60(b). On 23 March 2006, the trial court denied defendants’ Rule 60 motion, and on 21 April 2006, defendants filed notice of appeal to this Court.

As a preliminary matter, we note that defendants’ brief fails to comport fully with the North Carolina Rules of Appellate Procedure.

First, pursuant to Rule 28(b)(4), an appellant’s brief is required to contain a statement of the grounds for appellate review, which in turn “shall include citation of the statute or statutes permitting appellate review.” N.C. R. App. P. 28(b)(4) (2006). Defendants, however, simply make the conclusory statement that they “appeal[] as a right from a [jjudgment of the lower court” without providing reference to any statute permitting such appellate review.

Defendants also make the bald assertion that “[tjhe [tjrial [cjourt abused its discretion in failing to set aside the [jjudgment entered by the [cjourt on September 22, 2005.” Rule 28(b)(6) provides that “[tjhe statement of the applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.” N.C. R. App. P. 28(b)(6) (2006) (emphasis added). Defendants, however, have failed to define the “abuse of discretion” standard and have failed to provide citations to legal authority supporting their proposed standard of review.

Additionally, defendants’ lone assignment of error violates Rule 10(c), which requires assignments of error to “direct[] the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” N.C. R. App. P. 10(c)(1) (2006) (emphasis added). Similarly, pursuant to Rule 28(b)(6), “[i]mmediately following each question [presented in the brief] shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal.” N.C. R. App. P. 28(b)(6) (2006) (emphasis added). Defendants’ assignment of error, both in the record on appeal and as presented in their brief, fails to provide this Court with specific record and transcript references as required by the Rules of Appellate Procedure.

“It is well settled that the Rules of Appellate Procedure ‘are mandatory and not directory.’ ” State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (quoting Keep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005)). We believe, however, that the violations in the instant case are not sufficiently egregious to warrant dismissal. See Caldwell v. Branch, 181 N.C. App. 107, 110-11, 638 S.E.2d 552, 555 (2007). Thus, we choose to order defendants’ counsel to pay the printing costs of this appeal pursuant to Rule 34(b) of the North Carolina Rules of Appellate Procedure. See id.; see also Hart, 361 N.C. at 311, 644 S.E.2d at 202 (holding that “every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.”). We therefore respectfully instruct the Clerk of this Court to enter an order accordingly.

The dissent argues that this appeal should be dismissed based upon defendants’ numerous Rules violations. However, we believe that the Supreme Court’s recent decision in State v. Hart mandates a closer look at this Court’s recent practice of dismissing numerous appeals. See Jones v. Harrelson & Smith Contr’rs., LLC, 180 N.C. App. 478, 484-85, 638 S.E.2d 222, 227-30 (2006) (dismissing appeal for failure to argue or present authority in support of two assignments of error and failure to state a legal basis or set forth record pages in support of the remainder); Stann v. Levine, 180 N.C. App. 1, 3-4, 636 S.E.2d 214, 215-22 (2006) (dismissing appeal for numerous Appellate Rule violations); State v. Summers, 177 N.C. App. 691, 699, 629 S.E.2d 902, 908 (2006) (dismissing defendant’s assignment of error for failure to include a statement of the applicable standard of review), appeal dismissed and disc. rev. denied, 360 N.C. 653, 637 S.E.2d 192 (2006). Cf. State v. Lockhart, 181 N.C. App. 316, 319, 639 S.E.2d 5, 7 (2007) (requiring defendant’s counsel to personally pay the printing costs of the appeal for failure to include the standard of review and failure to double-space the brief), disc. rev. denied, 361 N.C. 365, 644 S.E.2d 556 (2007); Caldwell, 181 N.C. App. at 111, 638 S.E.2d at 555 (taxing printing costs against defendant’s counsel as single Appellate Rule violation was not substantial); Seay v. Wal-Mart Stores, Inc., 180 N.C. App. 432, 434, 637 S.E.2d 299, 301 (2006) (invoking Rule 2 and noting that “[plaintiff’s rule violations, while serious, are not so egregious as to warrant dismissal of the appeal.”). In fact, Hart explicitly states that dismissal is only one possible sanction for a violation of the Appellate.Rules. Hart, 361 N.C. at 311, 644 S.E.2d at 202. Because of the Supreme Court’s language disavowing this Court’s interpretation that “Steingress, Viar and Munn require dismissal in every case in which there is a violation of the Rules of Appellate Procedure,” id. at 313, 644 S.E.2d at 203, we believe that it is appropriate to apply sanctions pursuant to Rule 34(b), rather than dismissing defendants’ appeal in the instant case. To do so would be a step backward rather than the step forward that Hart asks us to take in applying the full range of sanctions available under the Appellate Rules rather than summarily dismissing many appeals.

Although Hart cautions us that “Rule 2 must be applied cautiously,” id. at 315, 644 S.E.2d at 205, and therefore its application inherently is limited, Hart suggests no similar limitation on the application of Rules 25 and 34, and we see no reason to engraft any limitation beyond the language contained within the Rules at this time. Under Hart, clearly, it is appropriate to apply the other sanctions envisioned by these Rules liberally and to allow appeals to proceed.

On appeal, defendants contend that the trial court abused its discretion in failing to set aside the trial court’s summary judgment entered 22 September 2005. We disagree.

Pursuant to Rule 60 of the North Carolina Rules of Civil Procedure,

[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) Any other reason justifying relief from the operation of the judgment.

N.C. Gen. Stat. § 1A-1, Rule 60 (2005). As this Court has noted, Rule 60(b) functions as “a grand reservoir of equitable power to do justice in a particular case.” Jim Walter Homes, Inc. v. Peartree, 28 N.C. App. 709, 712, 222 S.E.2d 706, 708 (1976) (citation and quotation marks omitted).

It is well-established that “[a] Rule 60(b) motion ‘is addressed to the sound discretion of the trial court and the court’s ruling will not be disturbed without a showing that the court abused its discretion.’ ” Danna v. Danna, 88 N.C. App. 680, 686, 364 S.E.2d 694, 698 (quoting Sink v. Easter, 288 N.C. 183,198, 217 S.E.2d 532, 541 (1975)), disc. rev. denied, 322 N.C. 479, 370 S.E.2d 221 (1988). “A trial court may be reversed for abuse of discretion only upon a showing that its actions are ‘manifestly unsupported by reason.’ ” Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (quoting Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980)). Furthermore, the trial court’s findings “ ‘are conclusive if there is any evidence on which to base such finding of fact. Whether the facts found constitute excusable neglect or not is a matter of law and reviewable upon appeal.’ ” Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 704, 179 S.E.2d 890, 891 (1971) (quoting Jones-Onslow Land Co. v. Wooten, 177 N.C. 248, 250, 98 S.E. 706, 707 (1919)); see also JMM Plumbing & Utils., Inc. v. Basnight Constr. Co., Inc., 169 N.C. App. 199, 202, 609 S.E.2d 487, 490 (2005) (“Whether neglect is ‘excusable’ or ‘inexcusable’ is a question of law which depends upon what, under all the surrounding circumstances, may be reasonably expected of a party to litigation. The trial judge’s conclusion in this regard will not be disturbed on appeal if competent evidence supports the judge’s findings, and those findings support the conclusion.” (internal citations and quotation marks omitted)).

In the case sub judice, defendants premised their Rule 60(b) motion on “[mjistake, inadvertence or excusable neglect,” pursuant to Rule 60(b)(1), and “the failure of [defendants]’ attorney [Kathryn Fagan, or “Fagan”] to file an Answer and her actions in leaving the County after telling [defendants] that she was handling the case,” pursuant to Rule 60(b)(6). The trial court, however, found as fact the following:

that on October 18, 2004, the Court granted then counsel for the defendant Kathryn Fagan’s Motion to Withdraw; that on July 6, 2005 defendant filed his own Motion to Continue the hearing of plaintiff’s Motion for Summary Judgment and requested the hearing be heard on September 19, 2005 which Motion was allowed; that the plaintiff’s Motion for Summary Judgment was set for September 19, 2005 and it was not until sometime around August 26, 2005 that defendant attempted to retain Kathryn Fagan again; that prior to August 26, 2005 defendant was acting as his own counsel; that on September 17, 2005 Kathryn Fagan sent to the Court a Motion requesting a continuance of the Summary Judgment Motion set for September 19, 2005; that the Motion for Continuance was denied by the Court at the September 19, 2005 Session of Court; that neither defendant nor Kathryn Fagan appeared at the September 19, 2005 session of Court....

Accordingly, the trial court concluded that “while there may have been neglect on Kathryn Fagan’s part[,] it does not appear that defendant’s neglect in this matter can be blamed solely on her nor does it amount to excusable neglect under the facts and circumstances.”

Upon reviewing the record, we hold that there exists competent evidence to support the trial court’s findings. On 18 October 2004, the trial court denied defendants’ Rule 12(b)(6) motion to dismiss, and the following day, the trial court granted defendants’ attorney’s motion to withdraw. The trial court specifically provided that Kathryn Fagan was “relieved of any further responsibility” in the case. Thereafter, defendants chose to proceed pro se until, as the trial court found, they apparently attempted to retain Fagan once again on or about 26 August 2005.¹ Thus, any alleged neglect during this time was directly attributable to defendants and not their attorney. During the time defendants elected to proceed pro se, defendants failed to respond to plaintiffs requests for admissions on 14 April 2005, and as a result, those matters were deemed admitted. Plaintiffs filed a motion for summary judgment on 1 July 2005, yet defendants neither responded to the motion nor attempted to retain replacement counsel. Defendants filed a pro se motion to continue on 7 July 2005 on the grounds that defendant Alvis would be out of the state until 24 July 2005, and the trial court rescheduled the hearing for 19 September 2005. On 17 September 2005, defendants once again attempted to continue the hearing, and the trial court denied the motion. Neither defendants nor Fagan appeared at the summary judgment hearing on 19 September 2005, and on 23 September 2005, the trial court granted plaintiff’s motion for summary judgment.

From 19 October 2004 until 26 August 2005, defendants chose to proceed pro se. As this Court has noted, “[w]hat constitutes excusable neglect depends upon what, under all the surrounding circumstances, may be reasonably expected of a party in paying proper attention to his case. However, . . . the failure of a party to obtain an attorney does not constitute excusable neglect.” Scoggins v. Jacobs, 169 N.C. App. 411, 415, 610 S.E.2d 428, 432 (2005) (internal quotation marks and citations omitted). Defendants are responsible for the fail--ure to respond to the requests for admissions, and we cannot find that such conduct constitutes “excusable neglect.”

Furthermore, with respect to defendants’ contention that Fagan’s failure to appear at the 19 September 2005 hearing constitutes excusable neglect, this Court has stated that

[w]here a defendant engages an attorney and thereafter diligently confers with the attorney and generally tries to keep informed as to the proceedings, the negligence of the attorney will not be imputed to the defendant. If, however, the defendant turns a legal matter over to an attorney upon the latter’s assurance that he will handle the matter, and then the defendant does nothing further about it, such neglect will be inexcusable.

Kirby v. Asheville Contracting Co., Inc., 11 N.C. App. 128, 131-32, 180 S.E.2d 407, 410 (emphasis added) (internal quotation marks and citations omitted), cert, denied, 278 N.C. 701, 181 S.E.2d 602 (1971). In the record on appeal, there are no emails, faxes, letters, or other communications from defendant Alvis to Fagan nor are there any documents demonstrating that defendant Alvis diligently conferred with Fagan. Indeed, the only correspondence in the record between defendant Alvis and Fagan is an email from Fagan to defendant Alvis dated 23 August 2005, in which Fagan states that she will prepare an affidavit and handle the motion for summary judgment. In the email, Fagan states, “Please, please let me know if you receive this with the attachment!!!” The record is devoid of any response to Fagan’s request. When Fagan ultimately filed the 17 September 2005 motion for continuance, she purportedly did so solely “at Mr. Alvis’ request” and only promised “a limited appearance” should the continuance be denied. Although Fagan did not appear at the hearing, defendants made no attempt to follow up with Fagan or the trial court with respect to the hearing. The trial court held the matter open for several days after the hearing. The trial court then granted plaintiff’s motion for summary judgment, signing the order on 22 September 2005 and filing the order the following day. Thereafter, defendants waited nearly three more months before requesting relief from the summary judgment. In sum, it is reasonable to conclude that defendant Alvis did not diligently confer with Fagan with respect to his case, and thus, defendant Alvis cannot demonstrate excusable neglect.

Additionally, although defendants requested relief from the judgment on the grounds of “[mjistake, inadvertence or excusable neglect” as well as “the failure of [defendants]’ attorney to file an Answer and her actions in leaving the County after telling [defendants] that she was handling the case,” defendants now argue that the trial court should have set aside the judgment pursuant to the federal Servicemembers Civil Relief Act, 50 U.S.C. app. § 501 et seq. Pursuant to the Act,

[i]f a servicemember, in the opinion of the court, is materially affected by reason of military service in complying with a court judgment or order, the court may on its own motion and shall on application by the servicemember—

(1) stay the execution of any judgment or order entered against the servicemember; and

(2) vacate or stay an attachment or garnishment of property, money, or debts in the possession of the servicemember or a third party, whether before or after judgment.

50 U.S.C. app. § 524(a). Specifically, defendants contend that defendant Alvis’ active duty military service from 2 July 2005 until 12 September 2005 precluded him from adequately preparing for the summary judgment hearing. Defendants, however, did not present any argument respecting the Servicemembers Civil Relief Act to the trial court, and thus, this issue has not been preserved for our review. See N.C. R. App. P. 10(b) (2006) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make ....”).

In sum, the trial court properly found defendant’s neglect inexcusable and that Fagan’s negligence, if any, is imputed to defendants. “ ‘[I]n the absence of sufficient showing of excusable neglect, the question of meritorious defense becomes immaterial.’ ” Scoggins, 169 N.C. App. at 413, 610 S.E.2d at 431 (quoting Howard v. Williams, 40 N.C. App- 575, 580, 253 S.E.2d 571, 574 (1979)). “We, therefore, need not address defendant[s’] argument in this regard.” Estate of Teel by Naddeo v. Darby, 129 N.C. App. 604, 611, 500 S.E.2d 759, 764 (1998). Accordingly, the trial court did not abuse its discretion in denying defendants’ Rule 60(b) motion for relief from the judgment, and defendants’ lone assignment of error is overruled.

Affirmed.

Judge HUNTER concurs in a separate opinion. Judge TYSON dissents in a separate opinion.

Footnotes

1

. Fagan filed a motion to continue on 17 September 2005 only because defendant Alvis had been unsuccessful in personally filing the motion and would be unable to do so prior to the date set for the hearing. Nowhere in the record does it state that Fagan had been retained, and, indeed, in her correspondence with the New Hanover District Court, Fagan only promised “a limited appearance” if the continuance was denied as she already was committed to represent clients in Currituck County Superior Court on 19 September 2005 — the date scheduled for defendants’ summary judgment hearing.