Dogwood Dev. & Mgmt. v. White Oak Transport

• Citation: 657 S.E.2d 361
• Decision Date: 07 March 2008
• Docket Number: No. 303A07.,303A07.
• Court: United States State Supreme Court of North Carolina
• Parties: DOGWOOD DEVELOPMENT AND MANAGEMENT COMPANY., LLC v. WHITE OAK TRANSPORT COMPANY, INC.

657 S.E.2d 361

DOGWOOD DEVELOPMENT AND MANAGEMENT COMPANY., LLC v. WHITE OAK TRANSPORT COMPANY, INC.

No. 303A07.

Supreme Court of North Carolina.

March 7, 2008.

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C.App. ___, 645 S.E.2d 212 (2007), dismissing defendant's appeal from a judgment and order entered 3 January 2006 and an order entered 2 March 2006, both by Judge Howard R. Greeson, Jr. in Superior Court, Forsyth County. Heard in the Supreme Court 13 November 2007.

Carruthers & Bailey, P.A., by J. Dennis Bailey, Winston-Salem, for plaintiff-appellee.

Parrish Smith & Ramsey, LLP, by Steven D. Smith, Winston-Salem; and Smith Moore, LLP, by J. Donald Cowan, Jr., Raleigh, for defendant-appellant.

MARTIN, Justice.

The Court of Appeals dismissed defendant White Oak Transport Company, Inc.'s appeal for violations of the North Carolina Rules of Appellate Procedure ("appellate rules" or "rules"). We reverse and remand with instructions, and clarify the manner in which the appellate courts should address violations of the appellate rules.

On 29 April 2004, plaintiff Dogwood Development and Management Company, LLC brought a breach of contract action against defendant in connection with defendant's waste hauling business. At trial, a jury found plaintiff and defendant entered into a contract, defendant breached the contract, and plaintiff was entitled to recover $155,365.00 in damages from defendant. The trial court entered judgment in favor of plaintiff on 3 January 2006. Ten days later, defendant moved for judgment notwithstanding the verdict and for a new trial, both of which the trial court denied on 2 March 2006. On 10 March 2006, defendant filed its notice of appeal from both the judgment and the order denying its post-trial motions. On 20 December 2006, plaintiff filed a motion to dismiss defendant's appeal for failure to comply with the appellate rules. Defendant did not respond.

On 5 June 2007, the Court of Appeals, in a divided opinion, dismissed defendant's appeal for violations of Rules 10(c)(1), 28(b)(4), and 28(b)(6). Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., ___ N.C.App. ___, ___, 645 S.E.2d 212, 217 (2007). The dissenting judge would have imposed monetary sanctions under Rules 25(b) and 34(b) and addressed the merits of the appeal. Id. at ___, 645 S.E.2d at 219 (Hunter, J., dissenting). Defendant appealed to this Court on the basis of the dissenting opinion.

At the outset we observe that "rules of procedure are necessary . . . in order to enable the courts properly to discharge their dut[y]" of resolving disputes. Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930). It necessarily follows that failure of the parties to comply with the rules, and failure of the appellate courts to demand compliance therewith, may impede the administration of justice. As this Court explained long ago:

Procedure is essential . . . to the application of principle in courts of justice, and it cannot be dispensed with. It is dangerous to ignore or disregard it.... [To do so] is not only discreditable to the administration of public justice, but it leads eventually to confusion and wrong, and leaves the rights and estates of many people in a more or less perilous condition.

Spence v. Tapscott, 92 N.C. 576, 578 (1885). Compliance with the rules, therefore, is mandatory. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007); Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005); Viar v. N.C. Dep't of Transp., 359 NC. 400, 401, 610 S.E.2d 360, 360 (2005) (per curiam); Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999); Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979); Pruitt, 199 N.C. at 789, 156 S.E. at 127. As a natural corollary, parties who default under the rules ordinarily forfeit their right to review on the merits. See Viar, 359 N.C. at 401, 610 S.E.2d at 360 ("`[F]ailure to follow [the] rules will subject an appeal to dismissal.'" (quoting Steingress, 350 N.C. at 65, 511 S.E.2d at 299)).

But "[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them." Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941). We have therefore emphasized that noncompliance with the appellate rules does not, ipso facto, mandate dismissal of an appeal. See Hart, 361 N.C. at 311, 644 S.E.2d at 202 ("[E]very violation of the rules does not require dismissal of the appeal or the issue . . . ."). Whether and how a court may excuse noncompliance with the rules depends on the nature of the default.

Our cases indicate that the occurrence of default under the appellate rules arises primarily from the existence of one or more of the following circumstances: (1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements. In the instant case, defendant's noncompliance fell within the third category, violation of nonjurisdictional requirements of the appellate rules. Nevertheless, to provide further guidance, we briefly discuss all three principal categories of default.¹

The first major category of default, known as the waiver rule, arises out of a party's failure to properly preserve an issue for appellate review. Rule 10(b)(1) provides that "[i]n 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." N.C. R.App. P. 10(b)(1). Rules 10(b)(2) and 10(b)(3) give specific instructions for preserving questions involving erroneous jury instructions and sufficiency of the evidence, respectively. N.C. R.App. P. 10(b)(2), (3).

The requirement expressed in Rule 10(b) that litigants raise an issue in the trial court before presenting it on appeal goes "to the heart of the common law tradition and [our] adversary system." Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 457 n. 1 (3d Cir.1982), vacated and remanded on other grounds, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). This Court has repeatedly emphasized that Rule 10(b) "prevent[s] unnecessary, new trials caused by errors ... that the [trial] court could have corrected if brought to its attention at the proper time." Wall v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d 571, 574 (1984). See also State v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983) (stating that "Rule 10 functions as an important vehicle to insure that errors are not `built into' the record, thereby causing unnecessary appellate review"); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (stating that "[t]he purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial"). Rule 10(b) thus plays an integral role in preserving the efficacy and integrity of the appellate process.

We have stressed that Rule 10(b)(1) "is not simply a technical rule of procedure" but shelters the trial judge from "an undue if not impossible burden." State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983); see also N.C. R.App. P, 10 drafting comm. comment., para. 2, reprinted in 287 N.C. 698, 700-01 (1975) [hereinafter Commentary] ("[N]o . . . error ought be the subject of appellate review unless it has been first suggested to the trial judge in time for [the judge] to avoid it of to correct it, or unless it is of such a fundamental nature that no such prior suggestion should be required of counsel."). See generally 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 19, at 76-87 (6th ed. 2004) [hereinafter Broun].

In light of the practical considerations promoted by the waiver rule, a party's failure to properly preserve an issue for appellate review ordinarily justifies the appellate court's refusal to consider the issue on appeal. See, e.g., State v. Campbell, 359 N.C. 644, 669, 617 S.E.2d 1, 17 (2005) (refusing to review admissibility of evidence on appeal when defendant did not object at trial as required by Rule 10(b)(1)), cert. denied, 547 U.S. 1073, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (same); see also State v. Truesdale, 340 N.C. 229, 232, 456 S.E.2d 299, 301 (1995) (refusing to review propriety of jury instructions when defendant did not object at trial to portion of instruction complained of on appeal as required by Rule 10(b)(2)); Penley v. Penley, 314 N.C. 1, 26-27, 332 S.E.2d 51, 66 (1985) (same).

The imperative to correct fundamental error, however, may necessitate appellate review of the merits despite the occurrence of default. For instance, plain error review is available in criminal appeals, Odom, 307 N.C. at 660, 300 S.E.2d at 378, for challenges to jury instructions and evidentiary issues, State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied, 532 U.S. 997, 121 S.Ct. 1660, 149 L.Ed.2d 641 (2001). Our decisions have recognized plain error only "in truly exceptional cases" when "absent the error the jury probably would have reached a different verdict." State v. Walker, 316 N.C. 33, 39, 340 S.E.2d, 80, 83 (1986) (observing that the heavy burden associated with plain error review is justified "because the defendant could have prevented any error by making a timely objection").

Aside from the possibility of plain error review in criminal appeals, Rule 2 permits the appellate courts to excuse a party's default in both civil and criminal appeals when necessary to "prevent manifest injustice to a party" or to "expedite decision in the public interest." N.C. R.App. P. 2. Rule 2, however, must be invoked "cautiously," and we reaffirm our prior cases as to the "exceptional circumstances"...