Faison & Gillespie v. Lorant

• Decision Date: 18 December 2007
• Docket Number: No. COA07-42.,COA07-42.
• Citation: 654 S.E.2d 47
• Court: North Carolina Court of Appeals
• Parties: FAISON & GILLESPIE, a General Partnership, Plaintiff, v. Bree A. LORANT and Bree A. Lorant d/b/a The Lorant Law Group, Defendant.

654 S.E.2d 47

FAISON & GILLESPIE, a General Partnership, Plaintiff, v. Bree A. LORANT and Bree A. Lorant d/b/a The Lorant Law Group, Defendant.

No. COA07-42.

Court of Appeals of North Carolina.

December 18, 2007.

Appeal by plaintiff from judgment entered 17 July 2006 by Judge Abraham Penn Jones in Durham County Superior Court. Heard in the Court of Appeals 10 September 2007.

Manning, Fulton & Skinner, PA, by John B. McMillan, Thomas C. Kilpatrick, and Evan B. Horwitz, Raleigh, for plaintiff-appellant.

The Lorant Law Group, by Bree A. Lorant, Chapel Hill, for defendants-appellees.

MARTIN, Chief Judge.

Plaintiff appeals from the trial court's order of 17 July 2006 modifying a 21 January 2006 arbitration award and denying plaintiff's motion for reconsideration of the trial court's 8 June 2006 order. For the following reasons, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

The parties stipulate that Bree A. Lorant ("defendant") was employed as an associate attorney with the law firm of Faison & Gillespie ("plaintiff") beginning in early 2000. On 15 January 2004, defendant terminated her employment with plaintiff.

Plaintiff contends that defendant systematically removed 63,500 pages of computer data files between October 2003 and December 2003 in anticipation of her departure from plaintiff's firm in January 2004. With the assistance of information technology consultants, plaintiff claims to have recovered most files removed by defendant at a cost of $24,622.44. Plaintiff also contends that defendant began a solo practice—The Lorant Law Group (with Bree A. Lorant, collectively "defendants")—and actively solicited four clients from plaintiff's firm. Plaintiff alleges defendants owe fees and costs for the quantum meruit value of services rendered to those clients by plaintiff, further alleges that defendant Lorant intentionally double-billed three clients during her tenure with plaintiff's firm at a total cost of $594.42.

One week before a scheduled trial, after all claims and counterclaims were fully pled, the parties executed an Agreement for Arbitration ("Agreement") on 7 November 2005. The Agreement included the following provisions:

D. Following the termination of employment, certain disputes and controversies have arisen between the parties. Such disputes and controversies-all as more fully described in the Complaint and Counterclaim filed by the parties-are the subjects of a presently pending lawsuit [herein "Pending Litigation"]. . . .

E. The parties have agreed to resolve their disputes through binding arbitration.

. . . .

1. Submission To Binding Arbitration. The parties hereby agree to submit all claims arising out of the transaction at issue in the Pending Litigation by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and the terms of this Agreement.

2. Scope Of Arbitration. The arbitration shall include all claims and defenses asserted by the parties in the Pending Litigation.

. . . .

5. Rules Of Arbitration. The arbitration shall be governed by the Commercial Arbitration Rules of the American Arbitration Association [herein "Governing Arbitration Rules"]. If any other provisions of this Agreement conflict with such rules, then the provisions of this Agreement shall control. The provisions of this Agreement shall also control any matters addressed by it which are not addressed by the Governing Arbitration Rules or as to which the Governing Arbitration Rules permit a variation. If any procedural issues arise that are not addressed by the Governing Arbitration Rules or this Agreement, then such issues shall be resolved in accordance with the provisions of the North Carolina Revised Uniform Arbitration Act, N.C.G.S. § 1-569.1 et seq.

. . . .

9. Governing Law. The interpretation and enforcement of this Agreement shall be governed by the North Carolina Revised Uniform Arbitration Act, N.C.G.S. § 1-569.1 et seq.

. . . .

11. Entire Agreement. The parties acknowledge and represent that this Agreement contains the entire agreement between the parties regarding the matters set forth and that it supersedes all previous negotiations, discussions and understandings regarding such matters. The terms of this Agreement are contractual and not a mere recital.

By the terms of the Agreement, all claims arising out of the Pending Litigation between the parties were submitted to the arbitrator, retired Superior Court Judge James M. Long.

The arbitration was conducted for two days beginning 19 December 2005. The arbitrator served his Arbitration Decision on 21 January 2006. Plaintiff moved to confirm the Arbitration Decision on 8 February 2006 in the superior court. Defendants submitted a motion to the arbitrator to modify the Arbitration Decision pursuant to N.C.G.S. § 1-569.20 on 16 February 2006. The arbitrator denied defendants' motion to modify the Arbitration Decision on 25 March 2006. Defendants appealed the arbitrator's denial of their motion to modify the Arbitration Decision to the superior court. On 8 June 2006, the superior court granted defendants' motion to modify the Arbitration Decision, striking the grants of interest awarded to plaintiff. On 13 June 2006, plaintiff moved the superior court to reconsider the modification of the Arbitration Decision, and to request that the superior court amend its 8 June 2006 order to make findings of fact and conclusions of law in support of the court's ruling. Defendants filed an amended motion to confirm the superior court's order on 16 June 2006. On 17 July 2006, the superior court entered an order granting defendants' motion to confirm the modified Arbitration Decision pursuant to its 8 June 2006 order.

We first consider defendants' motion to this Court to dismiss plaintiff's appeal on the grounds plaintiff failed to timely settle and file the record on appeal pursuant to Rules 11 and 12 of the North Carolina Rules of Appellate Procedure. We deny the motion to dismiss plaintiff's appeal.

"`The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal.'" Pollock v. Parnell, 126 N.C.App. 358, 361, 484 S.E.2d 864, 866 (1997) (quoting Wiseman v. Wiseman, 68 N.C.App. 252, 255, 314 S.E.2d 566, 567-68 (1984)). "The rules are designed to keep the process of perfecting an appeal flowing in an orderly manner." Id. (citing Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979)). However, this Court has held that "when a litigant exercises `substantial compliance' with the appellate rules, the appeal may not be dismissed for a technical violation of the rules." Spencer v. Spencer, 156 N.C.App. 1, 8, 575 S.E.2d 780, 785 (2003).

Rule 11 of the North Carolina Rules of Appellate Procedure provides: "Within . . . 35 days after filing of the notice of appeal if no transcript was ordered, the parties may by agreement entered in the record on appeal settle a proposed record on appeal prepared by any party in accordance with Rule 9 as the record on appeal." N.C.R.App. P. 11(a) (2007). Rule 11 further provides that, "[w]ithin 30 days . . . after service upon appellee of appellant's proposed record on appeal, that appellee may serve upon all other parties specific amendments or objections to the proposed record on appeal, or a proposed alternative record on appeal." N.C.R.App. P. 11(c) (2007). Finally, Rule 12 provides that, "[w]ithin 15 days after the record on appeal has been settled by any of the procedures provided in Rule 11 or Rule 18, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken." N.C.R.App. P. 12(a) (2007).

In the present case, plaintiff filed and served Notice of Appeal on 1 August 2006. On 6 September 2006, plaintiff timely served its proposed record on appeal upon defendants consistent with Rule 11(a). On 28 September 2006, defendants timely served their proposed amendments to the record on appeal upon plaintiff consistent with Rule 11(c). Between 11 October 2006 and 18 October 2006, plaintiff and defendants corresponded regularly by letter and telephone to negotiate settlement of the record on appeal. After plaintiff incorporated modifications requested by defendants, plaintiff sent the proposed record, totaling almost 600 pages, to defendants on 14 November 2006. The parties exchanged e-mails at the end of November 2006. Plaintiff's counsel made several attempts to confirm with defendants that the 14 November 2006 revised record on appeal accurately reflected the parties' intent. However, according to the sworn affidavit of 5 June 2007, defendants could not be reached to address this matter. Further, defendant Lorant was on secured leave between 21 December 2006 and 4 January 2007. One business day after returning from secured leave, plaintiff confirmed with defendants that the proposed record on appeal was satisfactory and filed the settled record on appeal with the Court of Appeals on 10 January 2007.

Defendants contend that the record on appeal was settled on 18 October 2006. For this reason, in order to comply with Rule 12(a), defendants contend that plaintiff should have filed the record on appeal with this Court no later than 2 November 2006 more than two months prior to plaintiff's filing date of 10 January 2007.

However, we conclude that plaintiff acted in good faith to verify that all modifications to the proposed record were incorporated to defendants' satisfaction, and promptly filed the record two days after verifying with defendants that the record was settled. Therefore, defendants' Motion to Dismiss is denied.

Plaintiff contends on appeal that the trial court's 8 June and 17 July 2006 orders "striking each award for payment of interest to [p]laintiff [in the Arbitration Decision], including contractual and pre-judgment interest" were not consistent with facts or law. Plaintiff argues the arbitrator was...