Kintz v Amerlink, Ltd., (03-532) 04/20/2004

Appeal by plaintiff from judgment entered 6 February 2003 by Judge Quentin Sumner in Nash County Superior Court. Heard in the Court of Appeals 18 March 2004.

Barry Nakell for plaintiff-appellant.

Yates, McLamb & Weyher, LLP, by Rodney E. Pettey and Jason D. Newton, for defendants-appellees.

    STEELMAN, Judge.

Plaintiff-appellant, Joseph Kintz, appeals an order granting defendant, AmerLink's, motion to stay further proceedings in this action pending a trial of a case that is pending in the State of Illinois. For the reasons discussed herein, we remand this matter to the trial court for further findings of fact.
Kintz is a resident of Illinois. AmerLink, Ltd. is a New York corporation with its headquarters and principal place of business located in Nash County, North Carolina. Defendant, Richard Spoor, AmerLink's president and chief executive officer, is a resident of Wake County, North Carolina, and works in Nash County, North Carolina. In April and July 2000, Kintz entered into a contract with AmerLink to buy a package of materials for the construction of a log home. The parties also entered into a separate contract for AmerLink to erect the log home package on property owned by Kintz in Illinois. Both contracts stated they would be governed and construed in accordance with the laws of North Carolina.
AmerLink commenced work on the project in November 2000. A dispute arose between the parties concerning the quality of the materials and workmanship of the home. Kintz refused to make additional payments until the problems with the home were corrected. In response, AmerLink removed its workers and materials from the jobsite.
On 10 July 2001, plaintiff's Illinois counsel sent a letter to AmerLink demanding it commence suit to enforce its mechanic's lien on plaintiff's property in Will County, Illinois. In response to this letter, AmerLink filed a Complaint to Foreclose Mechanics Lien and for Other Relief in the Circuit Court for Will County, Illinois on 11 October 2001. Kintz filed his answer and counterclaims to the Illinois action on 28 December 2001.
    On 1 October 2002, plaintiff filed this action against AmerLink in the Superior Court of Nash County, North Carolina asserting claims for breach of contract, breach of express and implied warranties, fraud, and unfair and deceptive trade practices. On 4 December 2002, plaintiff amended his complaint to add AmerLink's president, Richard Spoor as a defendant based on the theory of “alter ego” or “piercing the corporate veil.” AmerLinkfiled a motion to dismiss and in the alternative, to stay. On 27 December 2002, defendant filed their amended motion to dismiss and in the alternative, for the North Carolina action to be stayed pending resolution of the suit in Illinois.
    At the 6 January 2003 session of court in Nash County, the trial court conducted a hearing on defendant's motions and orally granted the motion to stay. Prior to the entry of a written order, plaintiff filed a request that the court's order contain findings of fact and conclusions of law pursuant to N.C. R. Civ. P. 52(a)(2). Plaintiff also filed a motion for reconsideration of the trial court's ruling.
    On 14 January 2003, defendants filed a stipulation in which Richard Spoor consented to the jurisdiction of the Illinois courts and AmerLink agreed not to object to any additional claims plaintiff might bring in Illinois based on delay, proximity to trial, or lack of jurisdiction. On that same day, the trial judge also signed an order granting the motion to stay. On 6 February 2003, the trial court held a hearing on plaintiff's motion for reconsideration and denied the motion. The trial court signed a second order granting defendants' motion to stay on 6 February 2003, which was identical to the order it signed on 14 January 2003. Plaintiff appealed.
    Plaintiff brings forward three assignments of error: (1) the trial court erred in finding it would work a substantial injustice for this action to be filed in this state; (2) the trial court erred in granting the stay prior to the defendants consenting tosuit in Illinois; and (3) the trial court erred in not making adequate findings of fact in this order. We agree with plaintiff's third assignment of error and remand this matter to the trial court for entry of further findings of fact. We do not address the other two assignments of error.
    N.C. Gen. Stat. § 1-75.12(a) provides that a stay may be

granted in a foreign jurisdiction where:

        If, in any action pending in any court of this State, the judge shall find that it would work substantial injustice for the action to be tried in a court of this State, the judge on motion of any party may enter an order to stay further proceedings in the action in this State. A moving party under this subsection must stipulate his consent to suit in another jurisdiction found by the judge to provide a convenient, reasonable and fair place of trial.
N.C. Gen. Stat. § 1-75.12(a) (2004). Where the trial court enters an order under G.S. 1-75.12, such order is within the discretion of the trial judge and will not be disturbed on appeal absent a showing of abuse of discretion. Lawyers Mut. Liab. Ins. Co. v. Nexsen Pruet Jacobs & Pollard, 112 N.C. App. 353, 356, 435 S.E.2d 571, 573 (1993).
    G.S. 1-75.12(a) does not define “substantial injustice.” Rather, this Court has established a list of “relevant factors” that may be considered as guidance for trial courts faced with motions to stay proceedings in North Carolina. Id. The factors a trial judge is to consider in determining whether to grant a stay include:
        (1) the nature of the case, (2) the convenience of the witnesses, (3) theavailability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations.

Lawyers Mut. Liab. Ins. Co., 112 N.C. App. 353, 356, 435 S.E.2d 571, 573 (1993) (citing Motor Inn Management, Inc. v. Irvin-Fuller Dev. Co., 46 N.C. App. 707, 713, 266 S.E.2d 368, 371 (1980)).
    In the instant case, plaintiff made a written request for findings of fact and conclusions of law pursuant to Rule 52(a)(2), which states, “[f]indings of fact and conclusions of law are necessary on decisions of any motion or order ex mero motu only when requested by a party....” N.C. R. Civ. P. 52(a)(2). “[W]hen requested, findings of fact and conclusions of law must be made even on rulings resting within the trial court's discretion.” Andrews v. Peters, 318 N.C. 133, 139, 347 S.E.2d 409, 413 (1986).
    Furthermore, where findings are required, the trial court must make them with “sufficient specificity to allow meaningful appellate review.” Id. “[W]hen the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence..., then the order entered must be vacated and the case remanded....” Quick v. Quick, 305 N.C. 446, 457, 290 S.E.2d 653, 661 (1982)(citations omitted).
    The order entered by the trial judge on both 14 January 2003 and 6 February 2003, in its entirety, reads as follows:
        1. The Court has considered the ten factors outlined in Lawyers Mut. Liab. Ins. Co. V.Nexsen, Pruet, Jacobs & Pollard, 112 N.C. App. 353 (1993) and finds that substantial injustice would occur for the action to continue in a court of this state (North Carolina). Further that an action is pending in Illinois between AmerLink and Joseph Plaintiff in which Mr. Plaintiff has asserted counter-claims arising out of the same transaction.

        2. The moving party (AmerLink) has stipulated consent that Richard Spoor, as named in the North Carolina suit as an agent of the corporation, is subject to the jurisdiction of the Illinois' courts and that AmerLink will not made any objections based upon delay or lack of jurisdiction to any motion to add Richard Spoor or additional claims to the Illinois' action. However, the Court does find that by doing so AmerLink has not enlarged procedural or substantive law of the State of Illinois, and whether an Illinois court allows any motions to amend or add parties by Mr. Kintz is not within this North Carolina court's jurisdiction; and

        3. That AmerLink Ltd's Motion to Dismiss based on the above is denied since the motion is properly one to stay this proceeding.
        ...
        THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Stay further proceedings in the above-captioned action in North Carolina is hereby ALLOWED and all such proceedings in the matter are therefore stayed.
    The trial court correctly recites that the Lawyers Mutual case contains the factors the court must consider in determining whether to issue a stay pursuant to G.S. 1-75.12. However, the court failed to make any findings as to the facts present in this case supporting its conclusion that the stay should be issued. Paragraph 1 is a conclusion of law and not a finding of fact. Further, this paragraph fails to identify which of the Lawyers Mutual factors it found to be present. Without specific findingsand conclusions of law stating which factors the trial court found to be present in this case, this court cannot conduct a meaningful appellate review of this matter.
    Defendant contends that even if the findings of the trial court are not sufficient on its face, the exchanges which occurred during the hearing regarding plaintiff's motion for findings of fact, in conjunction with the trial court's written order, combine to demonstrate the trial court did not abuse its discretion in awarding defendant's motion to stay.
    In this matter, plaintiff filed a written request that the court make specific findings of fact and conclusions of law pursuant to Rule 52(a)(2). When such a request is made the trial court is required to make such findings in its order, in writing. Andrews, 318 N.C. at 139, 347 S.E.2d at 413. The findings of fact must be made with sufficient specificity so as to allow for meaningful appellate review. Id. It is not the role of the appellate courts to comb through a transcript of the exchanges between the court and counsel and attempt to divine what findings the trial court may have intended to make in its order.
    The order of the trial court fails to contain adequate findings of fact and conclusions of law. This order is vacated and remanded to the trial court for entry of an order consistent with this opinion.
    Finally, Rule 9(a)(1)(a) of the Rules of Appellate Procedure provides that a record on appeal shall contain an index of the contents of the record on appeal. The record in this case containsa page captioned as “Index,” which contains a listing of the contents of the record on appeal, but fails to include any page numbers. An “index” without page numbers is not an index. The record on appeal was settled by agreement of counsel. Each counsel had a duty to see that the record submitted was in conformity with the Rules of Appellate Procedure. Rule 25(b) authorizes this court to impose sanctions against a party or attorney who fails to “substantially comply with these appellate rules. N.C. R. App. P. 25(b). Rule 25(b) and Rule 34(b)(2) of the appellate rules allows this court to impose sanctions of single or double costs. The record in this case did not substantially comply with the appellate rules, and the imposition of sanctions is appropriate. Each of the attorneys who signed the Agreement Settling the Record on Appeal, Barry Nakell and Jason D. Newton, are personally assessed with one cost each, a total of two costs, for violation of the Rules of Appellate Procedure.
    VACATED AND REMANDED.
    Judges MCGEE and CALABRIA concur.
    Report per Rule 30(e).