Appeal and Error--appealability--interlocutory order--appellate rules violations
Defendant Brandt Animal Care Fund Inc.'s (Fund) appeal from the trial court's 19
October 2004 order requiring an organizational meeting of the Fund's Board of Directors with
the participation of plaintiff executor is dismissed, because: (1) the Fund failed to demonstrate
why the Court of Appeals should consider its interlocutory appeal when the off-hand, after-the-
fact statement of the trial court relied upon by the Fund does not in any way approach the
certification requirements of N.C.G.S. § 1A-1, Rule 54(b), identification of any substantial right
denied the Fund by compliance with the order and working consequent injury to it if not
immediately corrected on appeal would be merely speculative and thus not properly before the
Court of Appeals, and the fact that the parties do not like each other is an inherent characteristic
of the judicial process which hardly constitutes a recognized basis for consideration of an
interlocutory appeal under the substantial right exception; and (2) the appeal was not properly
filed under the rules since there is no indication the Fund filed for judicial settlement of the
record within the time period prescribed by N.C. R. App. P. 11.
YOUNG MOORE AND HENDERSON, P.A., by Marvin M. Spivey, Jr. and
Anne E. Croteau, and HARVELL & COLLINS, P.A., by Wesley A.
Collins and Cecil Harvell, for plaintiff-appellee.
ALLEN AND PINNIX, P.A., by M. Jackson Nichols, for defendant-
appellant Brandt Animal Care Fund, Inc.
JOHN, Judge.
Defendant Brandt Animal Care Fund, Inc. (“the Fund”) appeals
the trial court's 19 October 2004 order requiring an organizational
meeting of the Fund's Board of Directors with the participation of
Plaintiff Executor Ronald L. White (“White”). For the reasons
discussed herein, the Fund's appeal is dismissed. Pertinent procedural and factual background information
includes the following: Gunhilde G. Brandt (“Brandt”) died testate
in Carteret County, North Carolina, on 10 June 2003. Brandt's will
named White as Executor, and several provisions of the will
directed White to distribute assets to the Fund. On 26 February
2004, White filed the instant declaratory judgment action against
the Fund and several other defendants, asserting, inter alia, that
the Fund was not properly organized and thus a justiciable
controversy existed regarding whether the Fund should receive a
“sizeable contribution” from Brandt's estate.
At a 29 July 2004 hearing, evidence introduced by the parties
tended to show that Brandt filed Articles of Incorporation
regarding the Fund in December 2002; that paragraph 9 of the
Articles of Incorporation named Brandt and Leonard Jones (“Jones”),
Brandt's former accountant, as initial directors of the Fund; and
that, following Brandt's death, Jones held a purported
organizational meeting of the Fund, during which his wife was
appointed as a director of the Fund and filing of amended Articles
of Incorporation reflecting her appointment was approved. On 19
August 2004, the trial court ruled the Fund was not properly
organized under N.C. Gen. Stat. § 55A-2-05 (2003) (if initial
directors “named in the articles of incorporation, the initial
directors shall hold an organizational meeting at the call of a
majority of the directors”). After further determining White might
act in the place of Brandt at a properly called organizational
meeting of the Fund, the court also ordered White and Jones to holdsuch a meeting and declared any action taken by the Fund prior to
said meeting void ab initio. The Fund subsequently filed a motion
requesting reconsideration and amendment of the trial court's
directives.
On 19 October 2004 and in response to the Fund's motion, the
trial court entered an amended order (“the Order”) which contained
the following conclusions of law:
1. The [o]rder dated August 19, 2004 . . .
is reconsidered.
2. As named in the original Articles of
Incorporation, the initial Board of
Directors of the Fund, [Brandt] and
[Jones], could not hold an initial
organizational meeting pursuant to
N.C.G.S. § 55A-2-05 because [of] the
death of [Brandt].
3. Pursuant to N.C.G.S. § 28A-13-3(a)(21),
[White] shall be allowed to participate
in the organizational meeting of [the
Fund]. He shall be given at least ten
(10) days notice[] of the time and place
of the meeting.
Based upon these conclusions of law, the trial court ordered
as follows:
I. The [o]rder dated August 19, 2004 . . .
is stricken in its entirety[.]
II. [White] and Jones shall now have a valid
organizational meeting of the Board of
Directors of [the Fund] on or before
October 29, 2004 pursuant to the
requirements of N.C.G.S. § 55A-2-05.
III. Once the Fund is properly organized
pursuant to the requirements of N.C.G.S.
§ 55A-2-05, the [claim of relief
regarding the Fund] in the Declaratory
Judgement Action is dismissed.
Notwithstanding, the Fund held a second purportedorganizational meeting on 26 October 2004, during which Jones again
appointed his wife a director. Although invited to the meeting and
in attendance, White was neither allowed to participate nor
appointed a director. On 28 October 2004, White moved that the
trial court dissolve the Fund and void the actions taken by it at
the 26 October 2004 meeting.
At an 8 November 2004 hearing, the trial court determined
that, by refusing to appoint White a director and allow him to
participate in the 26 October 2004 meeting, the Fund had failed to
comply with the Order. The court thereafter orally reiterated its
directive that the Fund appoint White director in place of Brandt
and stated the Fund was to conduct an organizational meeting within
one week with the participation of White.
Subsequently, the Fund filed Notice of Appeal of the Order.
On 15 August 2005, White filed a motion with this Court to dismiss
the Fund's appeal, asserting the appeal is interlocutory and
further that the Fund failed to properly file the Record on Appeal.
White's motion is on point in both regards.
In the case sub judice, the Order is directed only at issues
involving the Fund set out in White's fifth claim for relief and
leaves undisturbed multiple claims against the remaining
defendants. Therefore, the Order is interlocutory. See Howerton
v. Grace Hospital, Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440,
442 (1996) (trial court order “is interlocutory if it is made
during the pendency of an action and does not dispose of the case
but requires further action by the trial court in order to finallydetermine the entire controversy”) (citation omitted).
Interlocutory orders may be appealed only “where there has been a
final determination of at least one claim [] and the trial court
certifies there is no just reason to delay the appeal, [or] if
delaying the appeal would prejudice a 'substantial right.'”
Liggett Group v. Sunas, 113 N.C. App. 19, 23-24, 437 S.E.2d 674,
677 (1993) (citations omitted). “The reason for this rule is to
prevent fragmentary, premature and unnecessary appeals by
permitting the trial court to bring the case to final judgment
before it is presented to the appellate courts.” Fraser v. Di
Santi, 75 N.C. App. 654, 655, 331 S.E.2d 217, 218 (citation
omitted), disc. review denied, 315 N.C. 183, 337 S.E.2d 856 (1985).
Accordingly, we proceed to consider whether appeal of the Order may
properly be considered under the “no just reason to delay” or
“substantial right” exceptions. See id.
In maintaining the propriety of its appeal under the “no just
cause to delay” exception, the Fund points to a remark by the trial
court at the 8 November hearing to the effect that “the way to get
rid of what I've done is to appeal. You can handle it that way.”
The Fund insists the trial court's off-hand comment “is tantamount
to a certification for appeal.” This argument falls woefully short
of the mark.
Initially, we note parenthetically that the trial court's 8
November 2004 oral directives were not included in the Fund's
Notice of Appeal, which dealt exclusively with the Order dated 19
October 2004. This is significant in that the record is at bestunclear as to whether the trial court was referencing the Order
with the comments noted above.
Of far greater importance, however, is the fact that the Order
itself contains no statement by the trial court that there was “no
just reason for delay” of the appeal. See N.C. Gen. Stat. § 1A-1,
Rule 54(b) (2003) (“When more than one claim for relief is
presented in an action, whether as a claim, counterclaim,
crossclaim, or third-party claim, or when multiple parties are
involved, the court may enter a final judgment as to one or more
but fewer than all of the claims or parties only if there is no
just reason for delay and it is so determined in the judgment.”)
(emphasis added); Brown v. Brown, 77 N.C. App. 206, 208, 334 S.E.2d
506, 508 (1985) (“Assuming arguendo that plaintiff's contention has
merit, her appeal is still untimely because the trial court did not
certify the action for appeal by finding that there was 'no just
reason for delay.' Rule 54(b) expressly requires that this
determination be stated in the judgment itself.”) (citation
omitted), cert. denied, 315 N.C. 389, 338 S.E.2d 878 (1986). In
short, we do not believe the off-hand, after-the-fact statement of
the trial court relied upon by the Fund in any way approaches the
certification requirements of Rule 54(b).
Moreover, assuming arguendo some merit to the Fund's claim
that the trial court's comments might somehow be construed as
certification of the Order for appeal under Rule 54(b), we observe
that a
trial court's determination that there is “no
just reason for delay” of appeal, whileaccorded great deference, see DKH Corp. v.
Rankin-Patterson Oil Co., 348 N.C. 583, 585,
500 S.E.2d 666, 668 (1998), cannot bind the
appellate courts because “ruling on the
interlocutory nature of appeals is properly a
matter for the appellate division, not the
trial court[.]” Estrada v. Jaques, 70 N.C.
App. 627, 640, 321 S.E.2d 240, 249 (1984); see
also McNeil v. Hicks, 111 N.C. App. 262, 264,
431 S.E.2d 868, 869 (1993), disc. review
denied, 335 N.C. 557, 441 S.E.2d 118 (1994)
(Rule 54(b) certification “is not
dispositional when the order appealed from is
interlocutory”).
Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 726, 518
S.E.2d 786, 788 (1999). Suffice it to state that, for purposes of
ruling on the interlocutory nature of the instant appeal, we
decline to accord any binding effect to the 8 November 2004
comments of the trial court relied upon by the Fund. See id.
Turning to the substantial right exception, we note at the
outset that “[t]he appealability of interlocutory orders pursuant
to [such] exception is determined by a two-step test. '[T]he right
itself must be substantial and the deprivation of that substantial
right must potentially work injury to [the appellant] if not
corrected before appeal from final judgment.'” Miller v. Swann
Plantation Development Co., 101 N.C. App. 394, 395, 399 S.E.2d 137,
138-39 (1991) (citation omitted). “Whether a substantial right is
affected usually depends on the facts and circumstances of each
case and the procedural context of the orders appealed from.”
Estrada v. Jaques, 70 N.C. App. 627, 642, 321 S.E.2d 240, 250
(1984) (citation omitted). Most pertinently, it is “the
appellant's burden to present appropriate grounds for this Court's
acceptance of an interlocutory appeal,” Jeffreys v. Raleigh OaksJoint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994),
and not the responsibility of this Court to “construct arguments
for or find support for [the] appellant's right to appeal from an
interlocutory order.” Id. at 380, 444 S.E.2d at 254.
The Fund's assertions of the “substantial right” exception in
the case sub judice have been advanced in its appellate brief, its
response to White's motion to dismiss the appeal, and at oral
argument. We consider each ad seriatim.
The Fund's appellate brief merely contains the bald assertion
that “this matter[] affects a substantial right of Defendant Fund.”
We reiterate that it is not our responsibility to extrapolate from
this simple claim any possible arguments in support thereof. See
id.
The Fund is somewhat more detailed in its response to White's
motion to dismiss its appeal. In summary, the Fund insists that
“[b]ecause of [the] Order, every action taken by the . . . Fund
since its date of incorporation is now subject to legal
challenge[,]” and that a substantial right of the Fund has thus
been impacted by the Order. We find these further claims by the
Fund unpersuasive.
Interestingly, the Fund specifies no particular action it has
taken that is threatened by the Order. Indeed, the record reflects
no action yet taken by the Fund. The Order requires the Fund to
hold an organizational meeting in which White is to be appointed a
director and allowed to participate, and further provides that
White's claims against the Fund are to be dismissed upon organization of the Fund. However, the Fund has chosen to file its
appeal prior to conducting the organizational meeting mandated by
the Order. Identification of any substantial right denied the Fund
by compliance with the Order and working consequent injury to it if
not immediately corrected on appeal, see Miller, 101 N.C. App. at
395, 399 S.E.2d at 138-39, would therefore be merely speculative
and thus not properly before this Court. See Telerent Leasing
Corp. v. Barbee, 102 N.C. App. 129, 130, 401 S.E.2d 122, 123 (1991)
(“Our function as an appellate court is not to determine idle,
speculative questions of no immediate benefit to anyone.”).
Finally, in response to inquiry by this Court at oral
argument, counsel for the Fund asserted that White and Jones “did
not like each other” and would be unable to settle their
differences, thereby implying that the Fund's appeal should be
entertained under the “substantial right” exception so as to
expedite resolution of White's declaratory judgment action.
Although we may take notice that nearly all litigation entails at
best a modicum of implied disagreement and perhaps personal
hostility, this inherent characteristic of the judicial process
hardly constitutes a recognized basis for our consideration of an
interlocutory appeal under the “substantial right” exception.
The Fund's appeal is also subject to dismissal for failure to
comply with the North Carolina Rules of Appellate Procedure (“the
Rules”). “The time schedules set out in the [Rules] are designed
to keep the process of perfecting an appeal to the appellate
division flowing in an orderly manner.” Ledwell v. County ofRandolph, 31 N.C. App. 522, 523, 229 S.E.2d 836, 837 (1976). The
parties are not permitted to decide for themselves when to “take
[the] next step in the appellate process.” Id. “The Rules [] are
mandatory,” Richardson v. Bingham, 101 N.C. App. 687, 690, 400
S.E.2d 757, 760 (1991), and an appeal is subject to dismissal for
noncompliance with filing deadlines required by the Rules. See,
e.g., Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d
316 (1999) (per curiam) (appeal dismissed for noncompliance with
Rules).
Rule 12(a) of the Rules requires an appellant to file the
Record on Appeal within fifteen days of settlement of the record.
N.C.R. App. P. 12(a) (2005). The appellant must serve a proposed
record on appeal upon the appellee who, within thirty days, may
submit amendments, objections, or a proposed alternative record to
the appellant. N.C.R. App. P. 11(c). Where the parties agree to
the proposed record offered by the appellant or the amendments,
objections, or proposed alternative record offered by the appellee,
the agreed-upon record constitutes the settled Record on Appeal.
Id. However, should the parties disagree as to the inclusion of
certain materials, the appellant must either (i) file the disputed
items concurrent with the proposed record within fifteen days, or
(ii) file for judicial settlement of the record within ten days of
expiration of the period for serving amendments, objections, and
alternative proposed records. See id.; N.C.R. App. P. 12(a).
In the case sub judice, White served the Fund with amendments
and objections to the proposed record on 18 January 2005. Althoughit appears the Fund thereafter corresponded with White and agreed
to some of the latter's amendments and objections, there is no
indication the Fund filed for judicial settlement of the record
within the time period prescribed by Rule 11. By operation of
Rules 11 and 12, therefore, the Record on Appeal was settled and
the Fund was required to file it within the time limitations set
out in the Rules. See N.C.R. App. P. 11, 12. However, the Fund
continued to discuss contents of the record with White, who
attempted to cooperate while expressly reserving the right to
assert “untimely docketing of this record.” Concurrence on
composition of the record appears to have been reached in early
March 2005. The Fund thereafter filed the Record on Appeal with
this Court on 9 March 2005, a date, as discussed above, well
outside the time period prescribed by the Rules. See id.
In conclusion, the Fund has failed to demonstrate why this
Court should consider its interlocutory appeal, and further, said
appeal has not been properly filed under the Rules. The Fund's
purported appeal is therefore dismissed.
Appeal Dismissed.
Judges WYNN and STEELMAN concur.
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