McKinley Bldg. Corp. v. Alvis

• Decision Date: 05 June 2007
• Docket Number: No. COA06-1254.,COA06-1254.
• Citation: 645 S.E.2d 219
• Court: North Carolina Court of Appeals
• Parties: McKINLEY BUILDING CORPORATION, Plaintiff, v. Danny ALVIS, Individually and Danny Alvis, d/b/a, Battlecat Concrete, Defendants.

645 S.E.2d 219

McKINLEY BUILDING CORPORATION, Plaintiff, v. Danny ALVIS, Individually and Danny Alvis, d/b/a, Battlecat Concrete, Defendants.

No. COA06-1254.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by defendants from orders entered 22 September 2005 and 23 March 2006 by Judge Richard Russell Davis in New Hanover County District Court. Heard in the Court of Appeals 28 March 2007.

Yow, Fox & Mannen, LLP, by Jerry A. Mannen, Jr., Wilmington, for plaintiff-appellee.

Crossley, McIntosh, Prior & Collier, by Andrew J. Hanley, Wilmington, for defendants-appellants.

JACKSON, Judge.

On 20 July 2004, McKinley Building Corporation ("plaintiff") filed a complaint against Danny Alvis individually ("defendant Alvis") and Danny Alvis d/b/a Battlecat Concrete (collectively, "defendants") for defective construction. Specifically, plaintiff contended that defendants performed defective work as the subcontractor responsible for placing and finishing concrete footings and slabs at the Mayfair Town Center in Wilmington, North Carolina. Plaintiff further alleged that he was forced to hire another subcontractor at $60,950.00 to bring defendants' work into compliance with the specifications of the contract between plaintiff and defendants.

The parties arbitrated their dispute on 26 January 2005, and the arbitrator awarded no compensation to plaintiff. On 24 February 2005, plaintiff filed a request for trial de novo. On 14 April 2005, plaintiff served defendants requests for admissions, and after receiving no response, plaintiff filed a motion for summary judgment on 1 July 2005. Defendants moved for a continuance and the summary judgment hearing was continued to 19 September 2005. On 23 September 2005, the trial court granted plaintiff's motion for summary judgment in the amount of $59,343.91, with interest from the date of filing, along with $8,901.58 in attorneys' fees and costs.

On 15 December 2005, defendants filed a motion to stay execution and for relief from the judgment pursuant to Rule 60(b). On 23 March 2006, the trial court denied defendants' Rule 60 motion, and on 21 April 2006, defendants filed notice of appeal to this Court.

As a preliminary matter, we note that defendants' brief fails to comport fully with the North Carolina Rules of Appellate Procedure.

First, pursuant to Rule 28(b)(4), an appellant's brief is required to contain a statement of the grounds for appellate review, which in turn "shall include citation of the statute or statutes permitting appellate review." N.C. R.App. P. 28(b)(4) (2006). Defendants, however, simply make the conclusory statement that they "appeal[] as a right from a[j]udgment of the lower court" without providing reference to any statute permitting such appellate review.

Defendants also make the bald assertion that "[t]he [t]rial [c]ourt abused its discretion in failing to set aside the [j]udgment entered by the [c]ourt on September 22, 2005." Rule 28(b)(6) provides that "[t]he statement of the applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies." N.C. R.App. P. 28(b)(6) (2006) (emphasis added). Defendants, however, have failed to define the "abuse of discretion" standard and have failed to provide citations to legal authority supporting their proposed standard of review.

Additionally, defendants' lone assignment of error violates Rule 10(c), which requires assignments of error to "direct[] the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references." N.C. R.App. P. 10(c)(1) (2006) (emphasis added). Similarly, pursuant to Rule 28(b)(6), "[i]mmediately following each question [presented in the brief] shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal." N.C. R.App. P. 28(b)(6) (2006) (emphasis added). Defendants' assignment of error, both in the record on appeal and as presented in their brief, fails to provide this Court with specific record and transcript references as required by the Rules of Appellate Procedure.

"It is well settled that the Rules of Appellate Procedure `are mandatory and not directory.'" State v. Hart, 361 N.C. ___, ___, 644 S.E.2d 201, 202 (2007) (quoting Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005)). We believe, however, that the violations in the instant case are not sufficiently egregious to warrant dismissal. See Caldwell v. Branch, ___ N.C.App. ___, ___, 638 S.E.2d 552, 555 (2007). Thus, we choose to order defendants' counsel to pay the printing costs of this appeal pursuant to Rule 34(b) of the North Carolina Rules of Appellate Procedure. See id.; see also Hart, 361 N.C. at ___, 644 S.E.2d at 202 (holding that "every violation of the rules does not require dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure."). We therefore respectfully instruct the Clerk of this Court to enter an order accordingly.

The dissent argues that this appeal should be dismissed based upon defendants' numerous Rules violations. However, we believe that the Supreme Court's recent decision in State v. Hart mandates a closer look at this Court's recent practice of dismissing numerous appeals. See Jones v. Harrelson & Smith Contractors, LLC, ___ N.C.App. ___, ___, 638 S.E.2d 222, 227-30 (2006) (dismissing appeal for failure to argue or present authority in support of two assignments of error and failure to state a legal basis or set forth record pages in support of the remainder); Stann v. Levine, ___ N.C.App. ___, ___, 636 S.E.2d 214, 215-22 (2006) (dismissing appeal for numerous Appellate Rule violations); State v. Summers, 177 N.C.App. 691, 700, 629 S.E.2d 902, 908 (dismissing defendant's assignment of error for failure to include a statement of the applicable standard of review), appeal dismissed and disc. rev. denied, 360 N.C. 653, 637 S.E.2d 192 (2006). Cf. State v. Lockhart, ___ N.C.App. ___, ___, 639 S.E.2d 5, 7 (2007) (requiring defendant's counsel to personally pay the printing costs of the appeal for failure to include the standard of review and failure to double-space the brief), disc. rev. denied, ___ N.C. ___, 644 S.E.2d 556, 2007 WL 1063641 (Mar. 8, 2007) (No. 33P07); Caldwell, ___ N.C.App. at ___, 638 S.E.2d at 555 (taxing printing costs against defendant's counsel as single Appellate Rule violation was not substantial); Seay v. Wal-Mart Stores, Inc., ___ N.C.App. ___, ___, 637 S.E.2d 299, 301 (2006) (invoking Rule 2 and noting that "[p]laintiff's rule violations, while serious, are not so egregious as to warrant dismissal of the appeal."). In fact, Hart explicitly states that dismissal is only one possible sanction for a violation of the Appellate Rules. Hart, 361 N.C. at ___, 644 S.E.2d at 203. Because of the Supreme Court's language disavowing this Court's interpretation that "Steingress, Viar and Munn require dismissal in every case in which there is a violation of the Rules of Appellate Procedure," id. at ___, 644 S.E.2d at 203, we believe that it is appropriate to apply sanctions pursuant to Rule 34(b), rather than dismissing defendants' appeal in the instant case. To do so would be a step backward rather than the step forward that Hart asks us to take in applying the full range of sanctions available under the Appellate Rules rather than summarily dismissing many appeals.

Although Hart cautions us that "Rule 2 must be applied cautiously," id. at ___, 644 S.E.2d at 205, and therefore its application inherently is limited, Hart suggests no similar limitation on the application of Rules 25 and 34, and we see no reason to engraft any limitation beyond the language contained within the Rules at this time. Under Hart, clearly, it is appropriate to apply the other sanctions envisioned by these Rules liberally and to allow appeals to proceed.

On appeal, defendants contend that the trial court abused its discretion in failing to set aside the trial court's summary judgment entered 22 September 2005. We disagree.

Pursuant to Rule 60 of the North Carolina Rules of Civil Procedure,

[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) Any other reason justifying relief from the operation of the judgment.

N.C. Gen.Stat. § 1A-1, Rule 60 (2005). As this Court has noted, Rule 60(b) functions as "a grand reservoir of equitable power to do justice in a particular case." Jim Walter Homes, Inc. v. Peartree, 28 N.C.App. 709, 712, 222 S.E.2d 706, 708 (1976) (citation and quotation marks omitted).

It is well-established that "[a] Rule 60(b) motion `is addressed to the sound discretion of the trial court and the court's ruling will not be disturbed without a showing that the court abused its discretion.'" Danna v. Danna, 88 N.C.App. 680, 686, 364 S.E.2d 694, 698 (quoting Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)), disc. rev. denied, 322 N.C. 479, 370 S.E.2d 221 (1988). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are `manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (...