Dafford v. Jp Steakhouse LLC, COA10-101

• Decision Date: 05 April 2011
• Docket Number: No. 8-CVS-00337,NO. COA10-101,COA10-101,8-CVS-00337
• Court: North Carolina Court of Appeals
• Parties: MARY E. DAFFORD, Plaintiff, v. JP STEAKHOUSE LLC, and SAGEBRUSH OF NORTH CAROLINA LLC, Defendant.

MARY E. DAFFORD, Plaintiff,
v.
JP STEAKHOUSE LLC,
and SAGEBRUSH OF NORTH CAROLINA LLC, Defendant.

NO. COA10-101
No. 8-CVS-00337

NORTH CAROLINA COURT OF APPEALS

Filed: April 5, 2011

Harnett County

Appeal by plaintiff from judgment entered 31 August 2009 and order entered 8 October 2009 by Judge Franklin F. Lanier in Superior Court, Harnett County. Heard in the Court of Appeals 30 August 2010.

Michaux & Michaux, P.A., by Eric C. Michaux, for plaintiff-appellant.

Allen, Kopet and Associates, PLLC, by Stephen F. Dimmick and Scott J. Lasso, for defendant-appellees.

STROUD, Judge.

Plaintiff slipped on "a dollop of creamy, yellow.... unattended butter" on the floor of defendants' restaurant; due to injuries sustained in her fall, plaintiff filed a complaint against defendants for negligence. After trial of plaintiff's claim, the jury found that plaintiff was injured by defendants' negligence and that she should recover $4,635.70 for her injuries. Plaintiff filed

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a motion for a new trial¹ and a "PETITION FOR COSTS[;]" the trial court denied both. Plaintiff appeals the trial court's judgment awarding her $4,635.70, the trial court order denying her request for a new trial, and the trial court's denial of her "PETITION FOR COSTS[.]" For the reasons stated below, we affirm the trial court's judgment awarding damages and order denying a new trial; we dismiss plaintiff's appeal as to the trial court's denial of plaintiff's "PETITION FOR COSTS[.]"

I. Appellate Procedure Rules Violations

Defendants first direct our attention to numerous appellate rule violations on the part of plaintiff. However, defendants themselves have both cited the wrong version of the Rules of Appellate Procedure and committed an appellate rule violation. The North Carolina Rules of Appellate Procedure were revised in 2009, and the revisions are effective for all "appeals filed on or after 1 October 2009." Latta v. Rainey, ___ N.C. App. ___, ___, 689 S.E.2d 898, 905 n.4 (2010). Plaintiff's "NOTICE OF APPEAL" was filed 9 November

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2009, and thus this case is subject to the newest version of the Rules of Appellate Procedure. See id. It appears that neither party proceeded under the revised rules. We will address the errors committed by both parties.

As to plaintiff's appeal, defendant's brief first addresses the fact that plaintiff has abandoned several of her "Assignments of Error" and that her "Assignments of Error" fail to give "clear and specific record or transcript references." However, neither "assignments of error" nor "clear and specific" references for assignments of error are required under the revised rules. In lieu of assignments of error, Rule 10(b) now provides that

[p]roposed issues that the appellant intends to present on appeal shall be stated without argument at the conclusion of the record on appeal in a numbered list. Proposed issues on appeal are to facilitate the preparation of the record on appeal and shall not limit the scope of the issues presented on appeal in an appellant's brief.

N.C.R. App. P. 10(b).

Defendants also raise a more serious and substantive rule violation by plaintiff as to the content of the notice of appeal. Rule 3(d) states that "[t]he notice of appeal required to be filed and served by subsection (a) of this rule... shall designate the judgment or order from which appeal is taken[.]" N.C.R. App. P. 3(d). Rule 3(d) was not substantively changed by the revisions.

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Plaintiff's notice of appeal, filed on 9 November 2009, gives notice of appeal "from: 1) the Final Order entered on 8 October 2009 in the Superior Court of Harnett County awarding a judgment to the Plaintiff and against Defendants for damages; and 2) all other Orders entered in the Superior Court of Harnett County[.]" However, the judgment which ordered that plaintiff receive a monetary award was entered on 31 August 2009; the order denying plaintiff's motion for a new trial was entered on 8 October 2009. Thus, plaintiff described the 31 August 2009 judgment but gave the date for the 8 October 2009 order in the notice of appeal. The additional language in the notice of appeal as to "all other Orders entered" by the trial court fails to "designate the judgment or order from which appeal is taken[.]" N.C.R. App. P. 3(d).

Furthermore, in plaintiff's brief, she states that she appeals from

the denial of the Court to enter Judgment on the issue of liability during the trial of this matter at the close of all evidence...; the Denial of Plaintiff's Motion for Costs, dated 23 July 2009,...; the denial of the Court to grant Plaintiff's Motion for Judgement [sic] Notwithstanding the Verdict or in the Alternative to Award a New Trial, filed 9 October 2009[.]

Thus, considering plaintiff's notice of appeal and plaintiff's brief, we, like defendants, have had some difficulty discerning the precise rulings from which plaintiff is attempting to appeal.

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Compliance with Rule 3 is required for this Court to have jurisdiction to consider plaintiff's appeal. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) ("In order to confer jurisdiction on the state's appellate courts, appellants of lower court orders must comply with the requirements of Rule 3 of the North Carolina Rules of Appellate Procedure.") However,

we may liberally construe a notice of appeal in one of two ways to determine whether it provides jurisdiction.... First, a mistake in designating the judgment or in designating the part appealed from if only a part is designated, should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake. Second, if a party technically fails to comply with procedural requirements in filing papers with the court, the court may determine that the party complied with the rule if the party accomplishes the functional equivalent of the requirement.
Mistakes by appellants in following all the subparts of Appellate Procedure Rule 3(d) have not always been fatal to an appeal. For example, Rule 3(d) requires the appellant to designate the judgment or order from which appeal is taken. In Strauss v. Hunt, 140 N.C. App. 345, 350-51, 536 S.E.2d 636, 640 (2000), however, the appellant omitted an earlier trial court order and referred only to a later order in her notice of appeal, but the Court of Appeals found it could fairly infer her intent to appeal from the earlier order. Although defendant referred only to the 11 June 1999 order in her notice of appeal, we conclude the notice fairly inferred her intent to appeal from the 21 April 1999 order, and did not mislead the plaintiff. Similarly, in Evans v. Evans, 169 N.C. App. 358, 363, 610 S.E.2d 264, 269 (2005), the

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defendant gave notice she appealed an order denying Defendant's claim for child custody and child support, but omitted from the notice of appeal the post-separation support and divorce from bed and board. The Court of Appeals nevertheless found jurisdiction over the post-separation support and divorce from bed and board, concluding it is readily apparent that defendant is appealing from the order dated 18 December 2001 which addresses not only child custody and support but also post-separation support and divorce from bed and board.

Stephenson v. Bartlett, 177 N.C. App. 241-42, 628 S.E.2d 442, 443-44 (citations, quotation marks, and brackets omitted), disc. review denied, 360 N.C. 544, 635 S.E.2d 58 (2006).

Based upon Stephenson, we therefore consider whether plaintiff's "intent to appeal from a specific judgment can be fairly inferred from the notice and [whether] the appellee [was] misled by the mistake." Stephenson at 241, 628 S.E.2d at 443. Plaintiff's notice of appeal, although confusing, does identify both the judgment awarding damages entered on 31 August 2009 and the order denying plaintiff's motion for a new trial entered on 8 October 2009. However, in addition, in her brief, plaintiff claims also to be appealing from "the Denial of Plaintiff's Motion for Costs, dated 23 July 2009[.] "

Prior cases have determined that where the substantive issues are identified in the notice of appeal, the appellee is not "misled by the mistake." Id.; see, e.g., Strauss v. Hunt, 140 N.C. App.

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345, 350, 536 S.E.2d 636, 640 (2000) ("The 11 June 1999 order referenced in the notice of appeal is the order which denied defendant's motion to alter or amend the 21 April 1999 order. Defendant's motion was based on the same grounds as the two disputed assignments of error--that the court's 21 April 1999 order was in error. It can thus be plainly inferred that defendant intended to appeal the 21 April 1999 order. As plaintiff also knew the substance of defendant's motion to alter or amend, we...