Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
JAMES M. KRANTZ, a/k/a JIM KRANTZ; and CHRISTINE M. KRANTZ,
Plaintiffs, v. DONALD E. OWENS, d/b/a OWENS CONSTRUCTION; ALL
AMERICAN HOMES OF NORTH CAROLINA, L.L.C.; CENTURA BANK, a Banking
Corporation; and PETER E. LANE, Trustee, Defendants
Filed: 1 February 2005
1. Appeal and Error--preservation of issues--failure to make request for findings of
Although plaintiffs contend the trial court abused its discretion in a breach of contract
case by failing to include findings of fact in its order denying plaintiffs' motion for a new trial,
this assignment of error is dismissed because: (1) there is no designation in the record that
plaintiff's counsel made a request for findings of fact; and (2) without a record of a request being
made, the Court of Appeals cannot properly evaluate whether there was error.
2. Trials--motion for new trial--failure to show irregularity, misconduct, accident, or
The trial court did not abuse its discretion in a breach of contract case by denying
plaintiffs' motion for a new trial even though plaintiffs contend a defense witness gave false
testimony that plaintiffs were on the job site while plaintiffs maintain that they were not, because
there was no irregularity, misconduct, accident or surprise borne out by the record.
3. Appeal and Error--appellate rules violations--appeal dismissed
Defendant's appeal from the denial of his motion for sanctions in a breach of contract
case is dismissed based on multiple violations of the Rules of Appellate Procedure, because: (1)
there is no certificate of service for defendant's notice of appeal in the record as required by Rule
3; (2) defendant's purported appeal is not a cross-assignment of error, and thus he must file a
separate appellate brief as required by Rule 13(a)(1); (3) defendant's assignment of error does
not state the legal basis upon which the error is assigned as required by Rule 10(c)(1); (4)
defendant's motion for sanctions was based on N.C.G.S. §1A-1, Rule 11, but he failed to base
his argument on Rule 11 in his brief; and (5) defendant's sole citation to authority in his brief is
to a case that is not applicable to the trial court's denial of his Rule 11 motion for sanctions.
4. Pleadings--Rule 11 sanctions--findings of fact and conclusions of law needed
A de novo review revealed that the trial court erred in a breach of contract case by
denying plaintiffs' motion for sanctions under N.C.G.S. § 1A-1, Rule 11 against defendant and
defense counsel on the ground that defendant improperly sought sanctions against plaintiffs, and
the case is remanded for proper findings of fact and conclusions of law because in the light most
favorable to plaintiffs, defendant's motion for sanctions may lack a sufficient factual basis and
also might have been filed for an improper purpose.
Appeal by plaintiffs and defendant from orders entered 15
November 2002 by Judge Zoro J. Guice, Jr. in Rutherford County
Superior Court. Heard in the Court of Appeals 2 September 2004.
Baiba Bourbeau for plaintiff-appellants James M. Krantz, a/k/a
Jim Krantz and Christine M. Krantz
J. Christopher Callahan for defendant-appellee Donald E. Owens
d/b/a Owens Construction.
Plaintiffs appeal from orders denying their motions for a new
trial and sanctions against defendant Donald E. Owens d/b/a Owens
Construction (Owens) and defense counsel. Defendant Owens appeals
from the denial of his motion for sanctions against plaintiffs and
plaintiffs' counsel. After careful review, we find that the trial
court did not err in denying the motion for a new trial and we
dismiss defendant's appeal from the denial of his motion for
sanctions; however, we reverse the trial court's denial of
plaintiffs' motion for sanctions and remand for further findings.
Plaintiffs filed suit on 12 June 2000, alleging numerous
claims arising from construction of a modular home in Union Mills,
North Carolina, but on 30 September 2002, trial commenced only on
the issues of 1) whether defendants breached the implied warranty
of workmanlike quality, and 2) whether plaintiffs breached their
contract in failing to pay. After almost a week of trial, the jury
returned a verdict in favor of defendants on both issues, finding
that defendants did not breach the warranty of workmanlike quality
and awarding $8,000.00 on their breach of contract claim.
Based partially on what plaintiffs alleged to be false
testimony by one of Owens's witnesses, plaintiffs filed a motion
for a new trial. In their motion, plaintiffs also alleged that
counsel for Owens knew of the false testimony, but still offered itto the court. As such, counsel for plaintiffs sent letters to the
North Carolina State Bar and, since one of the witnesses who
allegedly gave false testimony was a licensed general contractor,
to the North Carolina Licensing Board for General Contractors.
In response, Owens's counsel filed a motion for sanctions
against plaintiffs and their attorney pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 11. Plaintiffs' counsel thereafter filed a motion for
Rule 11 sanctions against defendant Owens and his counsel, alleging
that Owens's counsel's motion for sanctions was for the improper
purpose of retaliation due to the filing . . . for a new trial.
Motion for a New Trial
A. Findings of Fact
 Plaintiffs' first assignment of error is that the trial
court abused its discretion by not including findings of fact in
its order denying the motion for a new trial. It is true that once
requested by counsel, a trial court must make specific findings of
fact, even with regards to discretionary rulings. Andrews v.
Peters, 318 N.C. 133, 347 S.E.2d 409 (1986). Yet, there is no
designation in the record that plaintiffs' counsel made this
request. According to the trial court's order settling the record
on appeal, which the parties agreed upon, no transcript of the
hearing regarding the motion for a new trial was included.
appellant's duty and responsibility to see that the record is in
proper form and complete. Pharr v. Whorley, 125 N.C. App. 136,
139, 479 S.E.2d 32, 34 (1997); see N.C.R. App. P. 9(a)(1)(e) and
Without a record of a request being made this Court cannot
properly evaluate whether there was error. Id.;
State v. Williams,274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968)
An appellate court
is not required to, and should not, assume error by the trial judge
when none appears on the record before the appellate court.
also Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 484-
85, 290 S.E.2d 599, 604 (1982) (a manifest abuse of discretion
must be made to appear from the record as a whole with the party
alleging the existence of an abuse bearing that heavy burden of
B. Denial of Motion
 Plaintiffs also contend that the trial court abused its
discretion in denying their motion for a new trial. We disagree.
Plaintiffs' motion for a new trial, filed pursuant to N.C. Gen.
Stat. § 1A-1, Rule 59(a)(1), (2), (3) and Rule 60(b)(3), was on the
basis that one of Owens's witnesses gave false testimony at trial.
Plaintiffs allege that Owens's witness's statement that plaintiffs
were on the job site, while they maintain they were not, misled and
prejudiced the jury. The trial court's decision as to whether this
type of falsity warrants a new trial is discretionary. [A]n
appellate court's review of a trial judge's discretionary ruling
either granting or denying a motion to set aside a verdict and
order a new trial is strictly limited to the determination of
whether the record affirmatively demonstrates a manifest abuse of
discretion by the judge. Worthington, 305 N.C. at 482, 290 S.E.2d
at 602 (citing cases). During review, we accord 'great faith and
confidence in the ability of our trial judges to make the right
decision, fairly and without partiality, regarding the necessity
for new trial.' Burgess v. Vestal, 99 N.C. App. 545, 550, 393S.E.2d 324, 327 (quoting Worthington, 305 N.C. at 487, 290 S.E.2d
at 605), disc. review denied, 327 N.C. 632, 399 S.E.2d 324 (1990);
McGinnis v. Robinson, 43 N.C. App. 1, 10
258 S.E.2d 84,
(1979) (A trial judge on hearing Rule 60(b) motions should
consider such factors as '(1) the general desirability that a final
judgment not be lightly disturbed, . . . (3) the opportunity the
movant had to present his claim or defense, and (4) any intervening
(quoting Equipment Co. v. Albertson, 35 N.C. App. 144,
147, 240 S.E.2d 499, 501-02 (1978)
Bearing these principles in mind, we are not convinced that
the trial court's denial of the new trial motion was a substantial
miscarriage of justice. There is no irregularity, misconduct, or
accident or surprise borne out by the record. See N.C. Gen. Stat.
§ 1A-1, Rule 59(a) (2003). It is clear from the record that
plaintiffs had evidence at the time of trial which placed them in
Indiana at times at which the witness was claiming he spoke with
them in North Carolina. Plaintiffs' counsel also conducted no
discovery of this witness's testimony prior to trial, despite him
being one of the contractors who worked on plaintiffs' home and
being named as a witness. At trial, plaintiffs' counsel cross-
examined the witness on his statements, but failed to impeach him
with the evidence.
It is also clear from the record that the Owens's witness only
testified that he saw plaintiffs, not that plaintiffs waived any
potential claims in their alleged conversation at the job site _ a
false claim that might have prevented a fair trial. [T]he party
alleging the existence of an abuse bear[s] that heavy burden ofproof. Worthington, 305 N.C. at 484-85, 290 S.E.2d at 604.
Plaintiffs' claims cannot bear this burden.
We hold that the trial
court did not abuse its discretion in denying the motion for a new
Motions for Sanctions
As to Owens's motion for sanctions, this Court dismisses his
appeal, but we reverse on plaintiffs' motion for sanctions and
remand for findings.
 We dismiss Owens's appeal based on multiple violations of
the Rules of Appellate Procedure. First, there is no certificate
of service for his notice of appeal in the record. This is a
violation of Rule 3 of the North Carolina Rules of Appellate
Procedure, which is jurisdictional, and thus requires that his
appeal be dismissed. Crowell Constructors, Inc. v. State ex rel.
, 328 N.C. 563, 402 S.E.2d 407 (1991)
; Gum v. Gum
, 107 N.C.
App. 734, 421 S.E.2d 788 (1992); Giannitrapani v. Duke University
30 N.C. App. 667, 228 S.E.2d 46 (1976).
Second, Owens's purported appeal is not a cross-assignment of
error, and thus he must comply with the same rules of appellate
procedure as any other appellant, including filing a separate
appellate brief. Cherry, Bekaert & Holland v. Worsham
, 81 N.C.
App. 116, 118, 344 S.E.2d 97, 99 (1986); see also People Unlimited
Consulting v. B&A Indus.
, 158 N.C. App. 744, 582 S.E.2d 82
(2003). Owens's failure to do so is a violation of Rule 13(a)(1),
and permits this Court to dismiss his appeal under Rule 13(c).
Owens's brief also violates Rules 28(b)(1), (3), (4), and (6). Further, Owens's assignment of error in the record violates Rule
10(c)(1) in that it does not state the legal basis upon which the
error is assigned.
Kimmel v. Brett
, 92 N.C. App. 331, 334, 374
S.E.2d 435, 436 (1988).
These Rules are mandatory, and violation
of these Rules subjects the appeal to dismissal. Wiseman v.
, 68 N.C. App. 252, 314 S.E.2d 566 (1984).
Third, Owens's motion for sanctions was based on Rule 11 of
the North Carolina Rules of Civil Procedure, but in his brief he
fails to base his argument on Rule 11. Thus, even assuming
that Owens properly preserved this issue for appellate
review through his assignment of error in the record, because he
fails to argue that issue in his brief, it is deemed abandoned.
N.C.R. App. P. 28(b)(5) (2004);
Strader v. Sunstates Corp.,
N.C. App. 562, 567, 500 S.E.2d 752, 755 (1998).
We further find
that Owens has abandoned this argument because his sole citation to
authority in his brief is to a case that is not applicable to the
trial court's denial of his Rule 11 motion for sanctions. Id
Owens sole argument is that the behavior of plaintiff's counsel in
the instant case was worse than that of plaintiffs' counsel in
Couch v. Private Diagnostic Clinic
, 146 N.C. App. 658, 554 S.E.2d
356 (2001). Couch
did not involve sanctions under Rule 11.
involved violations of the North Carolina Rules of
General Practice for the Superior and District Courts and the Rules
of Professional Conduct. When considering the appropriateness of
sanctions under Rule 11, the trial court looks at the document in
question, and then determines if it was well founded in both fact
and law, and whether it was filed for an improper purpose. Brysonv. Sullivan
, 330 N.C. 644, 412 S.E.2d 327 (1992). Unlike in Couch
the seriousness of the allegations made by plaintiffs' counsel are
not relevant in the Rule 11 context. What is relevant is
plaintiffs motivation for filing the motion, and the factual and
legal basis therefor. Nowhere in Owens's argument does he address
the real issue before us; whether there was sufficient evidence in
support of his allegation that plaintiffs filed their motion for a
new trial for an improper purpose, or that plaintiffs' motion was
not well founded in fact or law.
B. Plaintiffs' Motion Against Defendant
 After defendant Owens filed his motion for sanctions
referencing plaintiffs' filing for a new trial, plaintiffs filed a
motion for sanctions against defendant Owens and counsel on the
defendant sought sanctions without a proper factual
and legal sufficiency and for the improper purpose of retaliation
due to the filing . . . for a new trial. Although the trial court
denied this motion for sanctions, we review de novo
a trial court's
decision to grant or deny a motion for sanctions.
This Court exercises de novo review of the
question of whether to impose Rule 11
sanctions. . . . If we determine that the
sanctions were warranted, we must review the
actual sanctions imposed under an abuse of
discretion standard. . . . There are three
parts to a Rule 11 analysis: (1) factual
sufficiency, (2) legal sufficiency, and (3)
improper purpose. . . . A violation of any
one of these requirements mandates the
imposition of sanctions under Rule 11.
Dodd v. Steele
, 114 N.C. App. 632, 635, 422 S.E.2d 363, 365 (1994)
(internal citations omitted). The record bears out that plaintiffs
are basing their own motion for sanctions on the previous filing ofsanctions by defendant. Plaintiffs maintain in their motion for
sanctions that their motion for a new trial was validly brought and
therefore defendant's motion for sanctions was baseless or
improper, and hence opened the door for sanctions against himself
This adversarial battle between counsels strains the patience
of this Court; yet, we must reverse and remand to the trial court
for findings of fact and conclusions of law with regards to
plaintiffs' motion for sanctions. Our de novo
review requires us
(1) whether the findings of fact of the trial
court are supported by a sufficiency of the
evidence; (2) whether the conclusions of law
are supported by the findings of fact; and (3)
whether the conclusions of law support the
judgment. [Turner v. Duke University
, 325 N.C.
152, 165, 381 S.E.2d 706, 714 (1989), disc.
, 329 N.C. 505, 407 S.E.2d 552
(1991).] As a general rule, remand is
necessary where a trial court fails to enter
findings of fact and conclusions of law
regarding a motion for sanctions pursuant to
Rule 11. Sholar Bus. Assocs. v. Davis
N.C. App. 298, 303, 531 S.E.2d 236, 240
(2000). 'However, remand is not necessary
when there is no evidence in the record,
considered in the light most favorable to the
movant, which could support a legal conclusion
that sanctions are proper.' Id
. at 304, 531
S.E.2d at 240 (citation omitted).
Tucker v. Blvd. at Piper Glen
, 150 N.C. App. 150, 155, 564
S.E.2d 248, 251 (2002). Without findings of fact and conclusions
of law entered by the trial court, we cannot adequately conduct our
review. And, in the light most favorable to plaintiffs, the
movant, Owens's motion for sanctions may lack a sufficient factual
basis and also might have been filed for an improper purpose: just
six days after plaintiff filed for a new trial against Owens, hefiled his motion for sanctions and filed no other response to the
motion for new trial. At this point the Court is not in a position
to determine whether plaintiffs' last salvo hit its mark or not.
In conclusion, we affirm the trial court's denial of
plaintiffs' motion for a new trial and dismiss defendant's appeal
for numerous violations of the Rules of Appellate Procedure. We
reverse the trial court's denial of plaintiffs' Rule 11 motion for
sanctions, and remand to the trial court on this issue to enter
proper findings of fact and conclusions of law.
Affirmed in part, dismissed in part, and reversed in part.
Judges CALABRIA and STEELMAN concur.
*** Converted from WordPerfect ***