Providian National Bank v Bryant, 155 NC App 777 (01-754) 01/21/2003

Appeal by defendants from order entered 1 May 2001 by Judge Laurie L. Hutchins in Forsyth County Superior Court. Heard in the Court of Appeals 11 September 2002.

Faison & Gillespie, by Reginald B. Gillespie, Jr., for plaintiff appellee.

George A. Bryant, pro se, and Nancy M. Bryant, pro se, defendant appellants.

PER CURIAM.

    This appeal arises out of a credit card dispute between plaintiff Providian National Bank (Providian) and defendants George and Nancy Bryant. The pertinent facts are as follows: Defendants entered into a revolving credit account agreement with First Union Direct Bank, N.A. (First Union). First Union subsequently sold the account to Providian, who is now the holder in due course. Overtime, defendants accepted and used the credit cards, but failed to pay their credit card balances and defaulted under the terms of the credit agreement. By 27 September 2000, defendants were jointly and severally indebted to Providian in the amount of $12,780.79 plus interest, which accrued at a contract rate of 21.9% per year. On 2 November 2000, Providian filed suit to collect the unpaid credit card balance, interest, costs, and attorney's fees. On 30 November 2000, defendants answered, denying the existence of a written credit agreement and requesting dismissal of plaintiff's complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001). The case was referred to court-ordered, nonbinding arbitration pursuant to N.C. Gen. Stat. § 7A-37.1 (2001), and an arbitration hearing was set for 1 February 2001.
    Before the arbitration hearing, Providian gave its attorneys, Mr. Stuart M. Sessoms, Jr., and Mr. Robert E. Price, Jr., express written authority “to make binding decisions on its behalf in all matters in controversy related to this proceeding.” Defendants attended the hearing, and Mr. Price appeared on behalf of Providian. Defendants objected to his presence at the arbitration on the grounds that Mr. Sessoms was the attorney named in Providian's documents and Mr. Price stated he represented neither Providian nor Mr. Sessoms. The arbitrator knew that Mr. Priceworked with Mr. Sessoms and exercised his power under N.C. Arbitration Rule 3(j) to proceed without a notified party being present. The arbitrator overruled defendants' objection, received evidence, and entered an award on the merits in favor of Providian. On 20 February 2001, defendants appealed the arbitrator's award by timely requesting a trial de novo.
    On 16 March 2001, defendants filed a motion for sanctions against Mr. Sessoms for failing to appear at the arbitration hearing; the motion also sought dismissal of the action. On 2 April 2001, the trial court conducted an evidentiary hearing on defendants' motion for sanctions. During the hearing, the trial court received a copy of a Certificate of Authority dated 22 January 2001, which stated:
        Providian National Bank has granted to its North Carolina counsel, Sessoms & Rogers, P.A. (and to any duly licensed attorney at law associated by the said Sessoms & Rogers, P.A., to appear on its behalf at any arbitration conducted herein), full and complete authority to make binding decisions on its behalf in all matters in controversy related to this proceeding against [Defendants] . . . before any arbitrator assigned to hear this case.

Thereafter, on 1 May 2001, the trial court entered an order denying defendants' motion for sanctions. Defendants filed an interlocutoryappeal   (See footnote 1) from the denial of their motion for sanctions on 9 May 2001.
    In their appeal from the denial of their motion for sanctions, defendants argue that (I) the trial court's findings of fact regarding Mr. Price's authority to appear at the arbitration were not supported by competent evidence; and (II) the trial court committed reversible error in denying their motion for sanctions. We do not agree.
    N.C.R. App. P. 9(a) (2002) states that appellate review of cases from the trial court “is solely upon the record on appeal and the verbatim transcript of proceedings, if one is designated, constituted in accordance with this Rule 9.” Rule 9(a)(1)(e) requires that the record on appeal in a civil action contain
        so much of the evidence, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of all errors assigned, or a statement specifying that the verbatim transcript of proceedings is being filed with the record pursuant to Rule 9(c)(2), or designating portions of the transcript to be so filed[.]

Rule 9(a)(1)(j) requires that the record contain
        copies of all other papers filed andstatements of all other proceedings had in the trial court which are necessary to an understanding of all errors assigned unless they appear in the verbatim transcript of proceedings which is being filed with the record pursuant to Rule 9(c)(2)[.]

    “It is the appellant's duty and responsibility to see that the record is in proper form and complete.” State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983). In the present case, defendants' record does not contain a verbatim transcript of the hearing or a narration of the evidence on their motion for sanctions, nor does it include a copy of Providian's Certificate of Authority.
            Our review is limited to that which appears in the verbatim transcript or record on appeal. Where evidence is not presented in the record on appeal, we cannot speculate that there was prejudicial error but must presume that the findings of fact are conclusive and supported by competent evidence. Forrest v. Pitt County Bd. of Education, 100 N.C. App. 119, 394 S.E.2d 659, review denied, 327 N.C. 634, 399 S.E.2d 121 (1990), cert. denied, 328 N.C. 330, 400 S.E.2d 448, affirmed, 328 N.C. 327, 401 S.E.2d 366 (1991). For that reason, we are precluded from addressing questions of whether the evidence was sufficient to support the trial court's findings of fact, and the only remaining issue is whether the facts found support the conclusions of law. Britt v. Britt, 49 N.C. App. 463, 271 S.E.2d 921 (1980).

Drouillard v. Keister Williams Newspaper Services, 108 N.C. App. 169, 173, 423 S.E.2d 324, 327 (1992), cert. dismissed, disc. reviewdenied, 333 N.C. 344, 427 S.E.2d 617 (1993). In the present case, the trial court clearly found that Mr. Price was authorized to attend the arbitration hearing, and the trial court's findings were supported by the evidence (particularly the Certificate of Authority provided to the trial court by Providian at the sanctions hearing). Due to the incomplete record before us, the trial court's findings of fact will stand on appeal. We therefore hold the trial court's denial of the motion for sanctions was supported by sufficient findings of fact, which were in turn supported by competent evidence.
    We also note that sanctions under N.C. Gen. Stat. § 1A-1, Rule 37 (2001) “are within the sound discretion of the trial court and will not be overturned on appeal absent a showing of abuse of that discretion.” Hursey v. Homes By Design, Inc., 121 N.C. App. 175, 177, 464 S.E.2d 504, 505 (1995). Providian properly appeared at the arbitration hearing through its counsel, Mr. Price, and was in full compliance with the arbitration rules. Neither Providian nor its attorneys acted in a manner warranting sanctions; consequently, the trial court did not commit reversible error by denying defendants' motion for sanctions. Defendants' assignments of error are without merit and are therefore overruled.