Peverall v. County of Alamance

• Decision Date: 19 June 2007
• Docket Number: No. COA06-1106.,COA06-1106.
• Citation: 645 S.E.2d 416
• Court: North Carolina Court of Appeals
• Parties: James E. PEVERALL, Jr., and others similarly situated, Plaintiff, v. The COUNTY OF ALAMANCE, Defendant.

645 S.E.2d 416

James E. PEVERALL, Jr., and others similarly situated, Plaintiff, v. The COUNTY OF ALAMANCE, Defendant.

No. COA06-1106.

Court of Appeals of North Carolina.

June 19, 2007.

Appeal by plaintiff from order entered 28 April 2006 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 11 April 2007.

Randolph M. James, Winston-Salem, for plaintiff-appellant.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Elizabeth A. Martineau and Joseph S. Murray, IV, Charlotte, for defendant-appellee.

JACKSON, Judge.

James E. Peverall, Jr. ("plaintiff") appeals from the trial court's order denying class certification. For the following reasons, we affirm the trial court's order.

Plaintiff brought suit against the County of Alamance ("defendant") alleging due process violations, breach of contract, and intentional and negligent infliction of emotional distress. Plaintiff amended the complaint on 7 March 2001, and sought class action status on behalf of himself, his daughter, and others similarly situated. Defendant filed a motion to dismiss plaintiff's amended complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. The trial court denied defendant's motion to dismiss, and upon defendant's appeal, this Court affirmed the trial court's decision. Peverall v. County of Alamance, 154 N.C.App. 426, 573 S.E.2d 517 (2002), disc. rev. denied, 356 N.C. 676, 577 S.E.2d 632 (2003). Plaintiff then appealed, inter alia, the trial court's 21 October 2003 order denying his motion for class certification. This Court, in an unpublished decision, remanded to the trial court for further findings of fact on the class certification issue. Peverall v. County of Alamance, No. COA04-416, 2005 WL 14621, 2005 N.C.App. LEXIS 47 (N.C.Ct.App. Jan. 4, 2005). Plaintiff now appeals from the trial court's 28 April 2006 order denying class certification.

The facts of this case, stated in greater detail in the earlier opinions, show that plaintiff began working for Alamance County on or about 13 June 1992 as an emergency medical technician. At the time of plaintiff's hire, defendant had an insurance plan administered by Travelers Insurance Company. After plaintiff's hire in 1992, but prior to his retirement in July 1999, defendant became self-insured and provided its own insurance plan.

As a result of two vehicular accidents, plaintiff was diagnosed with post-traumatic stress disorder, and thus was unable to perform his EMS duties. In July 1999, plaintiff submitted an application to the Department of State Treasurer Retirement Systems Division for retirement based on disability. His application was approved by the Medical Board of the Retirement Systems Division on 11 August 1999, with a retroactive effective date of 1 August 1999.

On 15 August 1999 the Alamance County Board of Commissioners unanimously voted and adopted a new retroactive policy that required county employees to have completed twenty years of continuous employment (instead of five years as required pursuant to the previous policy) to receive insurance benefits after retirement due to disability. The change was to take effect retroactively on 1 July 1999. The new policy also stated that employees must not work in any capacity to be eligible. Defendant denied plaintiff insurance benefits based upon the new ordinance. Although he qualified under the old policy with more than five years of employment, he did not have the requisite twenty years of service to qualify under the new plan.

On appeal, plaintiff contends that: (1) the trial court abused its discretion in denying plaintiff's motion for class certification; (2) the denial of class certification was inconsistent with the applicable law as discussed by this Court's prior opinion remanding the issue of class certification; and (3) the trial court's findings of fact are not supported by competent evidence and do not support the trial court's conclusions of law.

As a preliminary matter, we note that plaintiff's brief fails to comply fully with the North Carolina Rules of Appellate Procedure. Rule 28(b)(6) provides that "[t]he argument shall contain a concise statement of the applicable standard(s) of review for each question presented, which shall appear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented." N.C. R.App. P. 28(b)(6) (2006). Rule 28(b)(6) further requires that "the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies." Id. In the case sub judice, plaintiff has not provided this Court with the applicable standards of review for any of the questions presented, much less citations of authorities supporting such standards.

Rule 28(b)(6) also requires the brief to contain references to the assignments of error in the record corresponding to each question presented. "Immediately following each question 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." Id. Moreover, Rule 10(c)(1) states that an assignment of error in the record "is sufficient if it directs 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). Plaintiff's assignments of error in both the record and brief incorrectly reference the record. Plaintiff's first and second assignments of error reference portions of plaintiff's and defendant's proposed orders to the trial court. Plaintiff's third assignment of error references defendant's proposed order.

"It is well settled that the Rules of Appellate Procedure `are mandatory and not directory.'" State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (quoting Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005)). As our Supreme Court noted in Hart, however, dismissal of an appeal or an assignment of error is not always required, and "some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure." Id. at 311, 644 S.E.2d at 202. Accordingly, we elect to order plaintiff's counsel to pay the printing costs of this appeal pursuant to Rule 34(b), as plaintiff's violations are not so egregious as to warrant dismissal. See McKinley Bldg. Corp. v. Alvis, ___ N.C.App. ___, ___, 645 S.E.2d 219, ___ (2007); Caldwell v. Branch, ___ N.C.App. ___, ___, 638 S.E.2d 552, 555 (2007). We instruct the Clerk of this Court to enter an order accordingly.

The standard of review for class certification is whether the trial court's decision constitutes an abuse of discretion. Nobles v. First Carolina Commc'ns, Inc., 108 N.C.App. 127, 132, 423 S.E.2d 312, 315 (1992), disc. rev. denied, 333 N.C. 463, 427 S.E.2d 623 (1993). Further, this Court "is bound by the [trial] court's findings of fact if they are supported by competent evidence." Id.

Plaintiff's first assignment of error is that the trial court abused its discretion in denying class certification. Plaintiff's second assignment of error is not addressed in the brief and is deemed abandoned pursuant to Rule 28(b)(6). N.C. R.App. P. 28(b)(6) (2006). Plaintiff's third assignment of error cites seven findings of fact which plaintiff argues are unsupported by competent evidence. As plaintiff did not assign error to the trial court's additional findings of fact, these findings are presumed to be supported by competent evidence and are binding on appeal. See Dreyer v. Smith, 163 N.C.App. 155, 156-57, 592 S.E.2d 594, 595 (2004). Accordingly, this Court's review is limited to findings of fact numbers 10 through 16.

Rule 23 of the North Carolina Rules of Civil Procedure governs class certification. See N.C. Gen.Stat. § 1A-1, Rule 23 (2005). A class action suit may be brought "[i]f persons constituting a class are so numerous as to make it impracticable to bring them all before the court." N.C. Gen.Stat. § 1A-1, Rule 23(a) (2005). One or more of the potential class members, "as will fairly insure the adequate representation of all," may sue or be sued, on behalf of all. Id. The overarching objectives of the rule are "the efficient resolution of the claims or liabilities of many individuals in a single action and the elimination of repetitious litigation and possible inconsistent adjudications involving common questions, related events, or requests for similar relief." English v. Holden Beach Realty Corp., 41 N.C.App. 1, 9, 254 S.E.2d 223, 230-31 (internal quotation marks and citation omitted), disc. rev. denied, 297 N.C. 609, 257 S.E.2d 217 (1979), overruled on other grounds, Crow v. Citicorp Acceptance Co., Inc., 319 N.C. 274, 354 S.E.2d 459 (1987). Upon a motion for class certification pursuant to Rule 23, the trial court first must determine whether the party seeking certification has satisfied its burden of showing that the three prerequisites to certification have been met. See id. at 7, 254 S.E.2d at 230.

The first prerequisite to certification is the existence of a class. See Crow, 319 N.C. at 282, 354 S.E.2d at 465. "[A] `class' exists under Rule 23 when the named and unnamed members each have an interest in either the same issue of law or of fact, and that issue predominates over issues affecting only individual class members." Id. at 280, 354 S.E.2d at 464. Additionally, as mandated by Rule 23, the class members must be so numerous that it is impracticable to bring them all before the court. N.C. Gen.Stat. § 1A-1, Rule 23(a) (2005). This numerosity prerequisite does not require that the party seeking certification must demonstrate the impossibility of joining class members, but rather the party must show "substantial difficulty or inconvenience in joining all members of the class." Crow, 319 N.C. at 283, ...