Appeal by defendant Susan W. Boylin from judgment dated 4
April 2003 and supplemental order dated 25 April 2003 by Judge W.
David Lee in Anson County Superior Court. Heard in the Court of
Appeals 19 May 2004.
No brief filed for plaintiff-appellee.
Wilson & Ratledge, PLLC, by Perry J. Pelaez, for defendant-
appellant Susan W. Boylin.
Harrington Law Firm, by Larry E. Harrington, for defendant-
appellees Paul Boylin and James Boylin.
BRYANT, Judge.
Susan W. Boylin (defendant) appeals a judgment dated 4 April
2003 and supplemental order dated 25 April 2003 determining the
ownership of certain personal property.
Margaret Wilson Boylin (the decedent) died on 12 August 1999
and was survived by her three children, F. Paul Boylin, III, James
G. Boylin, II, and Susan W. Boylin (collectively the Heirs). The
decedent's will equally distributed all of her personal propertyamong the Heirs. Pursuant to the terms of the will, each Heir was
named as an executor to the estate.
During the course of the administration of the estate, a
dispute arose between the Heirs concerning the ownership of certain
items of personal property. Ultimately, the clerk of superior
court removed the Heirs as executors and appointed H. Ligon Bundy
(plaintiff) as administrator of the estate.
After unsuccessfully attempting to inventory the estate,
plaintiff filed a complaint, and later an amended complaint,
seeking a declaratory judgment pursuant to the provisions of N.C.
Gen. Stat. §§ 1A-1, Rule 57 and 1-253 et seq, to have the trial
court determine the title of each item of disputed property.
This matter came on for a bench trial at the 21 March 2003
civil session of Anson County Superior Court. By judgment dated 4
April 2003, the trial court determined ownership of the estate
property. By supplemental order dated 25 April 2003, the trial
court mandated that defendant deliver to plaintiff certain items
determined to be property of the estate. Defendant filed notice of
appeal from the judgment and order on 2 May 2003.
Rules of Appellate Procedure Violations
“'The appellate courts of this state have long and
consistently held that the rules of appellate practice, now
designated the [r]ules of [a]ppellate [p]rocedure, are mandatory
and that failure to follow these rules will subject an appeal to
dismissal.'”
Holland v. Heavner, --- N.C. App. ---, ---, 595
S.E.2d 224, 226 (2004) (citing
Steingress v. Steingress, 350 N.C.64, 65, 511 S.E.2d 298, 299 (1999));
see also Campbell University
v. Harnett County, --- N.C. App. ---, ---, 589 S.E.2d 890, 890
(2004) (“Upon careful review of homeowner-intervenors' brief and
their assignments of error, we agree that the gravity of the
violations warrants dismissal of homeowner-intervenors' appeal.”).
“Our Supreme Court has consistently recognized, for nearly a
hundred years '“[i]t is, therefore, necessary to have rules of
procedure and to adhere to them, and if we relax them in favor of
one, we might as well abolish them.”'”
Holland, --- N.C. App. at
---, 595 S.E.2d at 226 (citations omitted).
Rule 28 of the appellate rules states that the argument
section of an appellate brief must “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). In the instant case, defendant failed to
properly designate the assignments of error corresponding to each
of her five arguments, which we note with greater specificity in
the body of this opinion.
In addition to the violations identified above, we note that
the footnotes in defendant's brief fail to comply with the
font-size requirements of Rule 26(g) of the rules of appellate
procedure. N.C.R. App. P. 26(g). Further, defendant has failed
to include a statement of the basis for appellate jurisdiction and
a certificate of compliance in violation of Rules 28(b)(4) and
28(j)(2)(A)(2). N.C.R. App. P. 28(b)(4); 28(j)(2)(A)(2).
Due to the nature of the rule violations, “it is difficult ifnot impossible to properly determine the appeal.”
Steingress, 350
N.C. App. at 66, 511 S.E.2d at 299. Our Court has on previous
occasions decided to reach the merits of an appeal, notwithstanding
violations of the rules of appellate procedure, by exercising its
discretion pursuant to Rule 2 of the rules of appellate procedure.
Rule 2 grants this Court the opportunity to “suspend or vary the
requirements or provisions of any of these rules in a case
pending.” N.C.R. App. P. 2. “'Rule 2 relates to the residual power
of our appellate courts to consider, in exceptional circumstances,
significant issues of importance in the public interest, or to
prevent injustice which appears manifest to the Court and only in
such instances.'”
Holland, --- N.C. App. at ---, 595 S.E.2d at 227
(quoting
Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300).
Defendant's violations of the rules of appellate procedure are
troubling. Nevertheless, we exercise our discretion to suspend the
rules and consider defendant's appeal on the merits.
_________________________
The issues on appeal are whether: (I) the trial court erred in
determining that the agreement (plaintiff's exhibit 7) was a void
and unenforceable contract; (II) the trial court's finding of fact
no. 11 is supported by the evidence presented; (III) the trial
court erred when it failed to comply with N.C. Gen. Stat. § 1A-1,
Rule 52; (IV) the trial court erred when it amended its judgment
more than ten days after the entry of final judgment; and (V) the
trial court erred when it excluded testimony of Mary Ford pursuant
to N.C. Gen. Stat. § 8C-1, Rule 601.
I
In her first question presented, defendant contends “[t]he
trial court erred when it determined that the 'agreement'
[plaintiff's exhibit 7] was a void and unenforceable contract.”
This issue appears to challenge the trial court's conclusion of law
no. 6, which states in pertinent part: “That these circumstances,
both independently and cumulatively, render [the agreement] void
and legally unenforceable as a contract among the parties.”
Although defendant's brief lists assignment of error no. 1 as the
pertinent assignment of error for this question presented, only
assignment of error no. 8 references conclusion of law no. 6.
Defendant assigns error to “[t]he trial court's conclusion of law
no. 6, on the ground that there was sufficient evidence presented
at trial to support the conclusion that there was a binding
agreement between the parties regarding the ownership of certain
personal property.” No other assignment of error directly or
indirectly references conclusion of law no. 6 or the enforceability
of the agreement.
Under this section of defendant's brief, however, she actually
argues that the trial court should have found estoppel by benefit,
which particular argument is not the subject of any assignment of
error. The arguments raised in defendant's brief as to conclusion
of law no. 6 are, therefore, not properly before this Court.
N.C.R. App. P. 10(a) (“[T]he scope of review on appeal is confined
to a consideration of those assignments of error set out in the
record on appeal in accordance with this Rule 10.”);
State v.Thomas, 332 N.C. 544, 554, 423 S.E.2d 75, 80 (1992) (“No assignment
of error corresponds to the issue presented, and therefore, this
matter is not properly presented for our consideration.”),
overruled on other grounds by State v. Richmond, 347 N.C. 412, 495
S.E.2d 677 (1998).
II
Defendant's second argument contends “the trial court's
finding of fact no. 11 is unsupported by and contrary to the
evidence.” Although defendant's brief matches this question
presented with assignment of error no. 2, it is actually the
subject of assignment of error no. 6. Specifically, defendant
challenges that portion of finding of fact no. 11 in which “the
trial court found that at the conclusion of the Inventory
but prior
to signing the Agreement, the Administrator disclosed the [s]ons'
objections to [defendant] and then demanded that the Heirs sign the
Agreement under the threat of having the inventoried items removed
for storage at great expense.” (emphasis in the original).
Defendant contends the evidence actually establishes that plaintiff
did not disclose the sons' objections until after the agreement was
signed. Even if defendant is correct, defendant does not explain
in her brief how this finding is material to the trial court's
decision. However, because it is not the responsibility of this
Court to scan the record to determine in the first instance how a
party has been prejudiced by a particular finding, this assignment
of error is overruled.
III
In her third argument, defendant asserts “[t]he trial court
erred when it failed to comply with [N.C. Gen. Stat. § 1A-1, Rule
52] by failing to make findings of fact sufficient to support its
judgment as to the ownership of 73 items of personal property.”
Although defendant's brief refers to assignment of error no. 3,
this argument is, in fact, not the subject of any assignment of
error. Not one of defendant's assignments of error contends that
the trial court's findings of fact are insufficient to support its
conclusions of law. The question is, therefore, not properly
before this Court.
Thomas, 332 N.C. at 554, 423 S.E.2d at 80.
IV
Defendant's fourth argument states “[t]he trial court erred
when it amended its judgment more than ten days after the entry of
judgment.” This question appears to arise out of assignment of
error no. 9. We disagree with defendant's characterization of the
trial court's supplemental order as an amendment. That order,
dated 25 April 2003, scheduled a hearing on the apportionment of
costs and, in response to a motion by plaintiff, directed defendant
to deliver to plaintiff or his authorized representative all of the
items on an attached exhibit by 1 May 2003. In its judgment, the
trial court declared those items to be the property of the estate.
Plaintiff's verified motion indicated that he had made a written
demand for the missing property, but defendant had not responded.
By ordering defendant to produce the items, the trial court was not
amending its prior order, but rather enforcing it. The trial court
is vested with requisite authority of enforcement.
See Wildcatt v.Smith, 69 N.C. App. 1, 11, 316 S.E.2d 870, 877 (1984) (“[W]hile a
court loses jurisdiction over a cause after it renders a final
decree, it retains jurisdiction to correct or enforce its
judgment.”);
Sturgill v. Sturgill, 49 N.C. 580, 587, 272 S.E.2d
423, 428 (1980) (the trial court had authority to enforce judgment
for alimony by subsequently requiring execution of assignment of
wages);
Parker v. Parker, 13 N.C. App. 616, 618, 186 S.E.2d 607,
608 (1972) (court has power to enforce its decree by subsequently
requiring defendant to post a bond). This assignment of error is
therefore overruled.
V
Defendant's fifth and final argument contends “[t]he trial
court erred when it excluded testimony of Mary Ford based on [N.C.
Gen. Stat. § 8C-1, Rule 601].” This contention is the subject of
assignment of error no. 3, although defendant's brief lists
assignment of error no. 5. The disputed testimony apparently
relates solely to the ownership of a corner cupboard. Ford was
allowed to testify that defendant's father gave defendant the
corner cupboard, and that defendant's father was present when
defendant transferred the cupboard from the father's house to
defendant's home. The trial court, however, prevented Ford from
testifying as to additional statements regarding the details of the
gift.
Defendant bore the burden of showing that had the trial court
admitted the excluded testimony, a different result would likely
have occurred. N.C.G.S. § 1A-1, Rule 61 (2003) (“No error ineither the admission or exclusion of evidence . . . is ground for
granting a new trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing a judgment or order,
unless refusal to take such action amounts to the denial of a
substantial right.”);
Warren v. City of Asheville, 74 N.C. App.
402, 409, 328 S.E.2d 859, 864 (1985) (
citation omitted) (“'The
burden is on the appellant not only to show error, but also to
enable the Court to see that he was prejudiced and that a different
result would have likely ensured had the error not occurred.'”).
Based on our review of the record and the trial court's decision,
we do not believe defendant has met her burden.
For the foregoing reasons, we affirm.
Affirmed.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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