Appeal by plaintiff from judgment entered 20 August 1998 by
Judge Henry Frye, Jr., in Guilford County Superior Court. Heard in
the Court of Appeals 21 February 2000.
On 7 May 1997, Larry Harvey (plaintiff) filed this civil
action against Leroy Stokes (defendant), seeking to recover
monetary damages for personal injuries arising out of an automobile
accident on 14 June 1994. Defendant denied that he was negligent
as alleged in the complaint, and pleaded the contributory
negligence of plaintiff in bar. On 22 July 1998, a jury found that
plaintiff was injured by the negligence of the defendant, but that
plaintiff, by his own negligence, contributed to his injuries. The
trial court entered a judgment denying plaintiff any recovery, from
which plaintiff appealed in apt time.
Gray, Newell & Johnson, L.L.P., by Angela Newell Gray, for
plaintiff appellant.
Burton & Sue, L.L.P., by Walter K. Burton and James D. Secor,
III, for defendant appellee.
HORTON, Judge.
On 22 July 1998, following the unfavorable jury verdict,
plaintiff requested in writing that the court reporter furnish him
a copy of the trial transcript. The court reporter prepared a
trial transcript and mailed it to plaintiff on 20 January 1999.
Defendant moved to dismiss plaintiff's appeal because of
plaintiff's failure to move for an extension of time to deliver the
transcript, and the failure of the court reporter to deliver the
transcript within 60 days of receiving an order from plaintiff to
do so. The trial court denied defendant's motion, finding good
cause to excuse plaintiff's failure to move for an extension of
time and good cause for the court reporter's failure to deliver the
transcript in a timely fashion. Defendant appealed. Defendant's
appeal is pending before this Court in case number COA99-952; for
clarity, we have elected to consider the appeals of both plaintiff
and defendant in this opinion.
I. Plaintiff's Appeal
[1]Plaintiff contends that the trial court erred in
submitting the issue of contributory negligence to the jury,
arguing that defendant offered no evidence at trial. Instead,
defendant relied on reasonable inferences from plaintiff'sevidence. We disagree with plaintiff, and hold that the issue of
contributory negligence was properly submitted to the jury based on
reasonable inferences drawn from plaintiff's own evidence.
Contributory negligence is "negligence on the part of the
plaintiff which joins, simultaneously or successively, with the
negligence of the defendant . . . to produce the injury of which
the plaintiff complains."
Jackson v. McBride, 270 N.C. 367, 372,
154 S.E.2d 468, 471 (1967). Defendant bears the "burden of provingcontributory negligence . . . [but] is entitled to have the issue
submitted to the jury if all the evidence and reasonable inferences
drawn therefrom and viewed in the light most favorable to defendant
tend to establish or suggest contributory negligence."
Wentz v.
Unifi, Inc., 89 N.C. App. 33, 38, 365 S.E.2d 198, 201,
disc. review
denied, 322 N.C. 610, 370 S.E.2d 257 (1988).
Here, the collision between vehicles driven by plaintiff and
defendant occurred on Bennett Street in the City of Greensboro. At
the point of collision, Bennett Street has four lanes, two for
travel in a southerly direction, and two lanes for travel in a
northerly direction. Immediately prior to the collision, plaintiff
testified that he was traveling south along Bennett Street in the
"inside" travel lane, the lane nearest the median of Bennett
Street, approaching the intersection of Bennett Street and Broad
Street. Plaintiff testified that he saw defendant's vehicle stop
at the stop sign regulating traffic entering Bennett Street, and
saw defendant begin to enter the intersection of Bennett and Broad
Streets. Plaintiff testified that he blew his horn and moved over
to the outside lane to "give him space." Plaintiff did not realize
that defendant was moving into his lane until the contact occurred.
Asked by defense counsel whether he stopped watching defendant's
vehicle, plaintiff testified as follows:
A I wouldn't say that I stopped watching.
I probably began to pay a little more
attention to what I was doing at that time.
. . . .
A At that point, once I had moved over, Ireally considered myself to
be safe and
considered that I've done all the proper
things and I had no idea that this gentlemen
[sic] was going to just bear off and cut off
in front of me.
Plaintiff called the investigating officer as a witness. The
accident report prepared by the officer was introduced into
evidence without objection. The investigating officer testified
without objection that the speed limit on Bennett Street at the
scene of the collision was 35 miles per hour (mph); that plaintiff
was traveling 35 to 40 mph along Bennett Street, and there was no
evidence that plaintiff ever reduced his speed prior to the
collision. The officer also testified that there were no skid
marks or tire impressions left by plaintiff's vehicle, and no
indication that plaintiff made any effort to avoid the collision.
According to the investigating officer, the left front of
plaintiff's vehicle struck the "right rear quarter" of defendant's
vehicle.
Viewing the evidence in the light most favorable to the
defendant, as we are required to do, we hold that a jury could
reasonably infer from the evidence summarized above that the
plaintiff was negligent in the operation of his motor vehicle. As
our Supreme Court stated in Parker v. Bruce, 258 N.C. 341, 128
S.E.2d 561 (1962), "[o]rdinarily, the mere fact of a collision with
a vehicle ahead furnishes some evidence that the following motorist
was negligent as to speed, was following too closely, or failed to
keep a proper lookout." Id. at 343, 128 S.E.2d at 562.
The trial court properly submitted the issue of contributorynegligence to the jury, and properly instructed the jur
y on that
issue. Its judgment is affirmed.
II. Defendant's Appeal
[2]Although we have resolved plaintiff's appeal in favor of
the defendant, we have elected to discuss defendant's appeal
because it presents a recurring question of concern to the
appellate bar of this state: what action, if any, must an appellant
take to preserve the right of appeal when the court reporter does
not transmit a copy of the trial transcript within the time
mandated by the appellate rules?
Here, the facts with regard to the timeliness of the appeal
are not contested. On 22 July 1998, the jury returned a verdict
adverse to plaintiff. On that same day, plaintiff stated, "we'll
file appropriate notice of appeal." Plaintiff also requested in
writing on 22 July 1998, a copy of the trial transcript from the
court reporter. The written judgment was signed by the trial court
on 20 August 1998, "as of July 22, 1998." Plaintiff filed written
notice of appeal on 20 August 1998. The court reporter did not
deliver a copy of the completed transcript until 20 January 1999,
long after the expiration of the 60-day period allowed the court
reporter by Rule 7(b)(1) of the Rules of Appellate Procedure.
There is no explanation of the reporter's delay in the record.
Plaintiff did not seek an extension of time from either the trial
court or from this Court, and the record does not contain reasons
for his failure to do so. However, once the plaintiff received the
trial transcript, he acted promptly, within the time set out in theappellate rules, to serve a proposed record on appeal. Defendant
argues, however, that plaintiff had an affirmative duty to secure
extensions of time, and to take whatever action might result in a
more expeditious delivery of the trial transcript.
The parties have ably set forth the arguments for and against
a strict construction and application of the appellate rules in the
context of this familiar factual situation. We do not, however,
write on a clean slate. In
Lockert v. Lockert, 116 N.C. App. 73,
446 S.E.2d 606,
disc. review allowed, 338 N.C. 311, 450 S.E.2d 487,
cert. allowed, 338 N.C. 311, 450 S.E.2d 490 (1994), this Court
answered the question raised by this appeal:
[I]f the court reporter fails to certify that
the transcript has been delivered within the
sixty-day period permitted by Appellate Rule
7(b), the thirty-five day period within which
an appellant must serve the proposed record on
appeal does not begin to run until the court
reporter does certify delivery of the
transcript. To hold otherwise would allow a
delay by a court reporter, whether with or
without good excuse, to determine the rights
of litigants to appellate review. In this
case, we hold that since Ms. Rorie [the court
reporter] had not certified delivery of her
portion of the transcript prior to the hearing
on plaintiff's motion to dismiss the appeal,
the defendant's thirty five day period to
serve the record on appeal never began to run,
and the trial court erred when it concluded
that the defendant's time for serving his
proposed record on appeal, and time for filing
and docketing the record on appeal with this
Court, had expired.
Id. at 81, 446 S.E.2d at 610. We followed the holding in
Lockert
in
Chamberlain v. Thames, 131 N.C. App. 705, 509 S.E.2d 443 (1998),
in which the majority of a divided panel considered itself bound by
Lockert under the holding of
In the Matter of Appeal from Civil
Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (one panel of
the Court of Appeals may not overrule another panel).
Both this Court and our Supreme Court have stated that the
Rules of Appellate Procedure are "mandatory," and that failure to
take timely action as required by the Rules may subject an appeal
to dismissal.
Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357,
361 (1979). In
Craver, the trial court settled the record on
appeal as required by the appellate rules. Defendant appellant,
however, did not obtain the clerk's certification of the record
within 10 days of the settlement, nor did defendant file the
settled record on appeal in this Court within the time set out in
the Rules. Thus, our Supreme Court held in
Craver that the trial
court properly dismissed defendant's appeal and this Court erred in
considering the merits of defendant's appeal.
Id. at 236, 258
S.E.2d at 361. In
Craver, dismissal was proper because the
appellant failed to take action required by the appellate rules and
was not otherwise prevented from complying with the rules by the
action or inaction of some third party.
Defendant relies on four of our decisions in which the Rules
of Appellate Procedure were strictly construed and applied.
However, none of the cases (all of which predate
Lockert) involved
the dismissal of an appeal because of the failure of the court
reporter to deliver a transcript.
See Woods v. Shelton, 93 N.C.
App. 649, 379 S.E.2d 45 (1989)(appellant tendered proposed record
on appeal 139 days after notice of appeal in violation of Rule11(b));
McGinnis v. McGinnis, 44 N.C. App. 381, 261 S.E.2d 491
(1980) (appellant failed to tender a proposed record on appeal in
apt time or secure an extension of time to do so);
Byrd v.
Alexander, 32 N.C. App. 782, 233 S.E.2d 654 (1977)(appellant did
not file the record on appeal within 10 days of certification of
the record on appeal by the clerk); and
Ledwell v. County of
Randolph, 31 N.C. App. 522, 229 S.E.2d 836 (1976)(failure of
appellant to obtain clerk's certification within 10 days of
settlement of record on appeal justified dismissal of appeal).
Here, the trial court found good cause to deny defendant's
motion to dismiss plaintiff's appeal. Based on our holding in
Lockert, we cannot say that the trial court abused its discretion
in doing so. However, we stress that, when a court reporter fails
to deliver a transcript within the time allowed by the appellate
rules, the better practice is that appellant request an extension
of time from the appropriate court. In appellant's application for
additional time, he should set forth the reasons for the reporter's
delay in delivering the transcript and the probable date of
delivery. The initial application for an extension of time to
produce the transcript is made to the trial court, which "in its
discretion, and for good cause shown" may extend the time for
production of the transcript an additional 30 days. N.C.R. App. P.
7(b)(1). Subsequent motions for extension of time to produce the
transcript "may
only be made to the appellate court to which appeal
has been taken."
Id. (emphasis added). We are aware, as are the
trial courts, that our court reporters face increasing, andsometimes conflicting, demands on their time. Documentation by the
court reporter, through an affidavit or verified motion, of the
reasons for non-production of an ordered transcript will help
inform the decision of a trial court or this Court when considering
an appellee's motion to dismiss based on a violation of the
appellate rules. Further, when motions for extension of time are
supported by documentation regarding the court reporter's failure
to timely deliver an ordered transcript, it is easier for a court
which is deciding a motion to dismiss an appeal, to determine
whether appellant has contributed to the delay in preparation of a
proposed record on appeal.
Finally, it would be better practice for the trial court to
set out facts which support its determinations that "good cause"
exists both for appellant's failure to request extensions of time,
and for appellant's failure to file a proposed record on appeal
within the allotted time. However, in this case, even assuming
that the trial court's order was incomplete or unsupported by the
evidence of record, we find no error prejudicial to the defendant
appellee. Therefore, the decision of the trial court which denied
defendant's motion to dismiss plaintiff's appeal is affirmed.
Affirmed.
Chief Judge EAGLES and Judge McGEE concur.
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