Honeycutt v. Honeycutt

• Decision Date: 16 November 2010
• Docket Number: No. COA09-1450.,COA09-1450.
• Citation: 701 S.E.2d 689
• Parties: Anita M. HONEYCUTT, Plaintiff, v. Joseph Whitney HONEYCUTT, Defendant.
• Court: North Carolina Court of Appeals

701 S.E.2d 689

Anita M. HONEYCUTT, Plaintiff,

v.Joseph Whitney HONEYCUTT, Defendant.

No. COA09-1450.

Court of Appeals of North Carolina.

Nov. 16, 2010.

Appeal by plaintiff from order entered on or about 1 April 2009 by Judge Jane V. Harper in District Court, Mecklenburg County. Heard in the Court of Appeals 14 April 2010.

James, McElroy & Diehl, P.A., Charlotte, by Amy E. Simpson, for plaintiff-appellant.

Casstevens, Hanner, Gunter, Riopel & Wofford, P.A., Charlotte, by Dorian H. Gunter, for defendant-appellee.

STROUD, Judge.

The trial court granted partial summary judgment in favor of defendant. Plaintiff appeals. Because we conclude that the trial court properly concluded that there was no genuine issue of material fact as to plaintiff's ratification of the parties' "SEPARATION AGREEMENT PROPERTY SETTLEMENT PARENTING AGREEMENT [,]" we affirm.

I. Background

On or about 26 June 2006, the parties entered into a "SEPARATION AGREEMENT PROPERTY SETTLEMENT PARENTING AGREEMENT" ("Agreement"). On 3 October 2008, plaintiff sued defendant requesting rescission of the agreement, equitable distribution, child support/attorney's fees or in the alternative specific performance of the Agreement seeking distribution of "80% of the value of all the assets which Defendant/Husband did not specifically disclose" and payment of plaintiff's attorney's fees, and absolute divorce. On or about 3 December 2008, defendant answered plaintiff's complaint and counterclaimed for child support, restoration of the status quo, and absolute divorce. Also on or about 3 December 2008, defendant filed a motion for summary judgment. On or about 1 April 2009, the trial court granted partial summary judgment in favor of defendant regarding plaintiff's claims for rescission of the Agreement and equitable distribution. Plaintiff appeals.

II. Referred Motions

Before we consider the substance of plaintiff's appeal we must address three motions filed by the parties with this Court. On or about 14 December 2009, defendant filed a motion to dismiss plaintiff's appeal pursuant to North Carolina Appellate Procedure Rules 9, 11, 12, 25 and 37. Defendant alleges various issues regarding the settlement of the record on appeal. In substance, defendant's arguments are based upon the fact that the record does not contain an order officially settling the record on appeal. Both parties concede that the trial court held a hearing regarding settlement of the record and made rulings as to various documents which should be included in the record; however, plaintiff's counsel failed to have the written order regarding settlement of the record executed by the trial court. Plaintiff filed the record on appeal and both parties filed their briefs.

While we agree that there is a technical deficiency in the record on appeal due to the lack of the trial court's order as to settlement of the record, we do not deem dismissal to be an appropriate remedy in this situation. In Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., our Supreme Court set out the proper analysis for this Court to use when a party fails to comply with the Rules of Appellate Procedure in some respect which does not deprive this Court of jurisdiction:

The final principal category of default involves a party's failure to comply with one or more of the nonjurisdictional requisites prescribed by the appellate rules.... [T]he appellate court faced with a default of this nature possesses discretion in fashioning a remedy to encourage better compliance with the rules.

We stress that a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.

....

Based on the language of Rules 25 and 34, the appellate court may not consider sanctions of any sort when a party's noncompliance with nonjurisdictional requirements of the rules does not rise to the level of a substantial failure or gross violation....

In the event of substantial or gross violations of the nonjurisdictional provisions of the appellate rules, however, the party or lawyer responsible for such representational deficiencies opens the door to the appellate court's need to consider appropriate remedial measures....

....

In determining whether a party's noncompliance with the appellate rules rises to the level of a substantial failure or gross violation, the court may consider, among other factors, whether and to what extent the noncompliance impairs the court's task of review and whether and to what extent review on the merits would frustrate the adversarial process. The court may also consider the number of rules violated, although in certain instances noncompliance with a discrete requirement of the rules may constitute a default precluding substantive review.

....

[W]hen a party fails to comply with one or more nonjurisdictional appellate rules, the court should first determine whether the noncompliance is substantial or gross under Rules 25 and 34. If it so concludes, it should then determine which, if any, sanction under Rule 34(b) should be imposed. Finally, if the court concludes that dismissal is the appropriate sanction, it may then consider whether the circumstances of the case justify invoking Rule 2 to reach the merits of the appeal.

362 N.C. 191, 198-201, 657 S.E.2d 361, 365-67 (2008) (citations and quotation marks omitted).

Here, we conclude that plaintiff's violations regarding the record on appeal were not substantial or gross violations because neither party claims that any evidence, document, or information which should be in the record on appeal is missing or that any item which should have been excluded was included. Under these circumstances, the violation does not "impair[ ] the court's task of review" as we have all the necessary documents in order to perform a complete review of the merits, and "review on the merits [does not]frustrate the adversarial process" as defendant has not suffered any prejudice or been impeded in arguing his own case due to the procedural defects. Id. at 200, 657 S.E.2d at 366-67. Accordingly, we deny defendant's motion to dismiss. Although we caution plaintiff's counsel in the future to ensure that all steps necessary for settlement of the record are completed and properly included in the record on appeal, pursuant to Dogwood, we do not impose any sanction against plaintiff. Dogwood at 199, 657 S.E.2d at 366 ("Based on the language of Rules 25 and 34, the appellate court may not consider sanctions of any sort when a party's noncompliance with nonjurisdictional requirements of the rules does not rise to the level of a 'substantial failure' or 'gross violation.' ")

In response to defendant's motion to dismiss, on or about 28 December 2009, plaintiff filed a motion to amend the record on appeal and a motion for an extension of time to have the order entered by the trial court added to settle the record on appeal. As we have already noted, we have the necessary documents in order to conduct a thorough review despite the technical violation of the Rules of Appellate Procedure, and as we have denied defendant's motion to dismiss, we also deny both of plaintiff's motions.

III. Interlocutory Appeal

In its brief, defendant again argues that this Court should dismiss plaintiff's appeal, this time on the grounds that the appeal is interlocutory as there are still several claims pending in the trial court. However, we conclude that plaintiff has demonstrated that the trial court's order granting partial summary judgment affects a substantial right, and thus we disagree. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C.App. 377, 379, 444 S.E.2d 252, 253 (1994) ("[I]n two instances a party is permitted to appeal interlocutory orders. First, a party is permitted to appeal from an interlocutory order when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal. Second, a party is permitted to appeal from an interlocutory order when the order deprives the appellant of a substantial right which would be jeopardized absent a review prior to a final determination on the merits. Under either of these two circumstances, it is the appellant's burden to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court's responsibility to review those grounds." (citations, quotation marks, and ellipses omitted)).

In Case v. Case, the parties entered into a separation agreement. 73 N.C.App. 76, 77, 325 S.E.2d 661, 662, disc. review denied, 313 N.C. 597, 330 S.E.2d 606 (1985). The plaintiff wife filed a claim for absolute divorce, and the defendant husband raised various counterclaims, including equitable distribution. Id. at 77, 325 S.E.2d at 662-63. The plaintiff wife filed for partial summary judgment, and the trial court granted partial summary judgment in the plaintiff wife's favor by dismissing the defendant husband's claim for equitable distribution. Id. at 77, 325 S.E.2d at 663. This Court determined that the defendant husband's appeal should be heard, stating:

The granting of the summary judgment motion is not appealable, unless the appeal is provided for elsewhere in the statute. Defendant may immediately appeal from this interlocutory order if it affects a substantial right. It has been held that an order which completely disposes of one of several issues in a lawsuit affects a substantial right. The trial court in granting summary judgment concluded that the separation agreement was valid and not revoked by the reconciliation of the parties. The separation agreement was a bar to the counterclaim for equitable distribution, thus there existed no genuine issue of material fact. The trial court's conclusion completely disposes of the issue of equitable distribution, thereby affecting a substantial right of the defendant rendering the appeal reviewable.

Id. at 78-79, 325 S.E.2d at 663 (citations omitted). Just...