Dogwood Development v. White Oak Transport, COA06-1073-2.

• Decision Date: 19 August 2008
• Docket Number: No. COA06-1073-2.,COA06-1073-2.
• Parties: DOGWOOD DEVELOPMENT AND MANAGEMENT COMPANY, LLC, Plaintiff, v. WHITE OAK TRANSPORT COMPANY, INC., Defendant.
• Court: North Carolina Court of Appeals

665 S.E.2d 493

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

No. COA06-1073-2.

Court of Appeals of North Carolina.

August 19, 2008.

Appeal by defendant from orders entered 3 January 2006 and 2 March 2006 by Judge Howard R. Greeson, Jr., in Forsyth County Superior Court. This case was originally heard in the Court of Appeals on 24 April 2007. See Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 183 N.C.App. 389, 645 S.E.2d 212 (2007). Upon remand by order from the North Carolina Supreme Court, filed 7 March 2008. See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008).

J. Dennis Bailey, Caruthers & Bailey, PA, Winston-Salem, for plaintiff-appellee.

Steven D. Smith, Parrish Smith & Ramsey, Winston-Salem, for defendant-appellant.

TYSON, Judge.

This Court initially heard White Oak Transport Company, Inc.'s ("defendant") appeal from: (1) judgment and order entered after a jury found it breached a contract with Dogwood Development and Management Company, LLC ("plaintiff"); and (2) order entered, which denied its motion for judgment notwithstanding the verdict pursuant to N.C. Gen.Stat. § 1A-1, Rule 50 and its motion for a new trial pursuant to N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) and (8). See Dogwood, 183 N.C.App. at 389-90, 645 S.E.2d at 214. A divided panel of this Court dismissed defendant's appeal based upon plaintiff's unanswered motion to dismiss defendant's appeal, which asserted numerous appellate rule violations. See id.

Defendant appealed pursuant to N.C. Gen. Stat. § 7A-30(2) (2007). Upon remand and after further review, we find no error in the jury's verdict and affirm the trial court's judgment and post-trial orders.

I. Background

This Court previously outlined the background leading to this appeal:

On 29 April 2004, plaintiff filed suit against defendant for breach of contract. Plaintiff alleged: (1) defendant hauled waste for Republic Services of North Carolina, LLC ("Republic") from plaintiff's waste transfer station; (2) Republic paid defendant $10.00 per ton hauled; (3) defendant agreed to pay plaintiff $.50 per ton hauled; and (4) defendant breached its agreement with plaintiff.

On 26 September 2005, the matter was tried before a jury and the jury found: (1) plaintiff and defendant entered into a contract; (2) defendant breached the contract; and (3) plaintiff was entitled to recover $155,365.00 from defendant. The trial court entered a judgment and order on 3 January 2006.

On 13 January 2006, defendant moved for [judgment notwithstanding the verdict] pursuant to N.C. Gen.Stat. § 1A-1, Rule 50 and for a new trial pursuant to N.C. Gen.Stat. § 1A-1, Rule 59(a)(7) and (8). The trial court denied defendant's motions by order entered 2 March 2006. Defendant appeal[ed] from both the judgment and orders entered 3 January 2006 and 2 March 2006.

Dogwood, 183 N.C.App. at 390, 645 S.E.2d at 214.

On 20 December 2006, plaintiff moved to dismiss defendant's appeal based on violations of the North Carolina Rules of Appellate Procedure. Id. Defendant failed to respond to plaintiff's motion and has failed to correct its violations as of this date. Id. Plaintiff's motion to dismiss alleged defendant: (1) failed to state the grounds for appellate review in violation of Appellate Rule 28(b)(4); (2) failed to reference any assignments of error pertinent to the questions presented in its appellate brief in violation of Appellate Rule 28(b)(6); (3) failed to state the applicable standard of review for each question presented in its appellate brief in violation of Appellate Rule 28(b)(6); and (4) asserted arguments in its brief not the subject of the assignments of error as articulated in the record on appeal in violation of Appellate Rule 28(b)(6).

A divided panel of this Court granted plaintiff's motion to dismiss and dismissed defendant's appeal based upon the four violations enumerated above. Id. at 395, 645 S.E.2d at 217. Defendant appealed pursuant to N.C. Gen.Stat. § 7A-30(2). Our Supreme Court reversed and remanded this case to this Court "for consideration ... of whether the appellate rules violations in this case implicate [Appellate] Rules 25 and 34, and if so, whether a sanction other than dismissal is appropriate." Dogwood, 362 N.C. at 201-02, 657 S.E.2d at 367 (emphasis supplied).

II. Rules of Appellate Procedure

In Dogwood, our Supreme Court set out to "clarify the manner in which the appellate courts should address violations of the appellate rules." 362 N.C. at 193, 657 S.E.2d at 362. Dogwood does not address how this Court should alter our approach to "address violations of the appellate rules[ ]" when presented with an unanswered motion to dismiss, which asserts appellate rules violations, and a party's failure to correct or amend those violations. 362 N.C. at 193, 657 S.E.2d at 362.

Generally, where a party moves for relief and the opposing party fails to respond, the requested relief is granted. For example, if a defendant fails to answer a properly served complaint, the plaintiff is entitled to entry of default and may move for a default judgment pursuant to N.C. Gen.Stat. § 1A-1, Rule 55 (2007). If a party fails to respond to another party's requests for admissions, the matter is deemed admitted pursuant to N.C. Gen.Stat. § 1A-1, Rule 36 (2007).

Our rules of civil procedure also provide:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

N.C. Gen.Stat. § 1A-1, Rule 56(e) (2007). This Court must decide how to address a party's motion to dismiss for violations of the appellate rules when the other party fails to respond or correct the violations. 362 N.C. at 191, 657 S.E.2d at 361. We are compelled in this case to review this appeal, and, in our discretion, to determine "whether a sanction other than dismissal is appropriate." Id. at 202, 657 S.E.2d at 367 (emphasis supplied).

"There is a presumption in favor of the regularity and validity of judgments in the lower court, and the burden is upon appellant to show prejudicial error." London v. London, 271 N.C. 568, 570, 157 S.E.2d 90, 92 (1967) (citation omitted). "Without preserved, assigned, and argued assignments of error that identify the pages where the alleged error occurred, the appellate court can only rummage through the record to ascertain error." Brantley Springett & Kelly Dellerba, Much Ado About Nothing: Dismissals for Appellate Rules Violations, North Carolina Lawyers Weekly, October 8, 2007, at 20NCLW0815, 20NCLW0818. "It is not the role of the appellate courts ... to create an appeal for an appellant." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).

In Dogwood, our Supreme Court restated ninety-five years of precedent and "observe[d] that `rules of procedure are necessary ... in order to enable the courts properly to discharge their dut[y]' of resolving disputes." 362 N.C. at 193, 657 S.E.2d at 362 (quoting Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930)). "It is, therefore, necessary to have rules of procedure and to adhere to them, and if we relax them in favor of one, we might as well abolish them." Bradshaw v. Stansberry, 164 N.C. 356, 356, 79 S.E. 302, 302 (1913).

Our Supreme Court noted in Dogwood that an "appellate court faced with ... [nonjurisdictional rule violations] possesses discretion in fashioning a remedy to encourage better compliance with the rules." 362 N.C. at 198, 657 S.E.2d at 365. This Court filed 800 written opinions from 1 January through 1 July 2008 and filed a total of 1,596 written opinions in 2007. Allowing this Court "discretion in fashioning a remedy[,]" given our case load, allows for the possibility of a "relax[ation] [of the rules] in favor of one[.]" Id.; Bradshaw, 164 N.C. at 356, 79 S.E. at 302. Our Supreme Court previously stated that "the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule." Viar, 359 N.C. at 402, 610 S.E.2d at 361 (citing Bradshaw, 164 N.C. at 356, 79 S.E. at 302).

More recently, in State v. Hart, our Supreme Court reaffirmed that uniform application of the Rules of Appellate Procedure is paramount and stated:

[I]nconsistent application of the Rules [of Appellate Procedure] may detract from the deference which federal habeas courts will accord to their application. Although a petitioner's failure to observe a state procedural rule may constitute an "adequate and independent state ground" barring federal habeas review, Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594, 604 (1977), a state procedural bar is not "adequate" unless it has been "consistently or regularly applied." Johnson v. Mississippi, 486 U.S. 578, 589, 108 S.Ct. 1981, 1988, 100 L.Ed.2d 575, 586 (1988). Thus, if the Rules are not applied consistently and uniformly, federal habeas tribunals could potentially conclude that the Rules [of Appellate Procedure] are not an adequate and independent state ground barring review. Therefore, it follows that our appellate courts must enforce the Rules of Appellate Procedure uniformly.

361 N.C. 309, 317, 644 S.E.2d 201, 206 (2007).

A. Nature of Defendant's Appellate Rules Violations

In Dogwood, our Supreme Court stated "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."...