Dungan & Mitchell v Dillingham Constr., 168 NC App 595 (03-1411-2) 02/15/2005

    Defendant David Dillingham has been in the construction business since approximately 1966. He is the president and treasurer of defendant Dillingham Construction Company, Inc.; his wife, defendant Judy Dillingham, helps with the company. In 1998, Mr. Dillingham hired Robert Dungan of the plaintiff law firm in connection with two matters involving First Union. First, Dillingham Construction Company was two years in arrears on a First Union note personally guaranteed by both David and Judy Dillingham. Mr. Dillingham acknowledged in his deposition that he and his wife expected "to be sued personally and corporately as well." Second, Mr. Dillingham had just discovered that an employee of his company had repeatedly cashed company checks with First Union in violation of the company's corporate resolution on file with First Union. Additionally, Mr. Dillingham later retained plaintiff in connection with a series of lawsuits arising out of a construction project at Appalachian State University, where his company was serving as a grading contractor.
    Plaintiff sent defendants monthly invoices for the services rendered in these matters. Initially, defendants paid the invoices without question, but they ceased paying defendants after July1999. After plaintiff withdrew from representation of defendants for non-payment of fees, defendants sought fee dispute resolution with the North Carolina State Bar. On 13 February 2001, the State Bar's Client Assistance Committee notified Mr. Dillingham by letter that the Committee had declined to mediate the matter based on its conclusion that the fees charged were reasonable.
    On 6 April 2001, plaintiff filed a complaint against defendants, alleging that defendants owed plaintiff $30,621.48 in fees. On 4 June 2001, defendants answered, admitting that "some Defendants engaged Plaintiff's services for the purpose of representation in several legal matters." The answer also admitted that "Plaintiff did attempt to provide services to certain Defendants on certain legal matters," but denied owing the claimed debt. The answer did not assert any counterclaims. The lawyer who filed the answer ultimately withdrew from representation of defendants. On 3 September 2002, his successor was also allowed to withdraw, but the trial court ordered "that the trial of this matter not be delayed by [counsel's] withdrawal or to otherwise allow Defendants to retain other counsel."
    On 27 November 2002, plaintiff filed a motion for summary judgment. Although defendants had been served with a Notice of Hearing, indicating that the motion would be heard on 9 December 2002, defendants failed to appear at the summary judgment hearing or otherwise submit evidence in opposition to the motion. The trial court, after reviewing the Dillinghams' depositions (on its own initiative), granted partial summary judgment againstdefendants "jointly and severally on the issue of liability," but denied summary judgment on the issue of damages. This order was filed on 10 December 2002.
    On 12 December 2002, defendants filed a motion requesting ten days' additional time to file opposing affidavits for the summary judgment hearing. The motion stated that defendants were not represented by counsel and that the notice of hearing "was served by mail on the Wednesday before Thanksgiving and due to the holiday and the vacation of David and Judy Dillingham, defendants have been unable to prepare opposing affidavits." The court denied the motion on the same day.
    Beginning on 29 January 2003, the parties (all represented by counsel) tried the issue of damages before a jury in Buncombe County District Court, with the Honorable Shirley H. Brown presiding. A single issue was submitted to the jury: "What Amount, if any, do the Defendants owe the Plaintiff on account?" The jury found that defendants owed plaintiff $30,621.48. On 10 February 2003, Judge Brown entered a judgment for this amount together with $7,822.04 in interest. On 7 March 2003, defendants filed notice of appeal.

    As their first assignment of error, defendants contend that the trial court erred in granting partial summary judgment for plaintiff. We must decide whether this issue is properly before the Court. Defendants' notice of appeal, filed by trial counsel, stated:            COMES NOW the Defendants, by and through undersigned counsel, and hereby gives Notice of Appeal to the North Carolina Court of Appeals from the Judgment signed on the 6th day of February, 2003, and filed and entered on the 10th day of February, 2003, by the Honorable Shirley H. Brown, Judge Presiding over Superior Court [sic] of Buncombe County, entering Judgment in favor of the Plaintiff.

The notice of appeal thus failed to specifically appeal from the trial court's summary judgment order entered on 10 December 2002.
    Proper notice of appeal requires that the appealing party "designate the judgment or order from which appeal is taken and the court to which appeal is taken . . . ." N.C.R. App. P. 3(d). "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). Our Court has held that a mistake in designating the judgment or in designating the part appealed from, if only a portion is designated, should not result in loss of the appeal, so long as the court is able fairly to infer an intent to appeal from a specific judgment and the appellee is not misled by the mistake. Von Ramm v. Von Ramm, 99 N.C. App. 153, 156-57, 392 S.E.2d 422, 424 (1990). Here, even if we construe defendants' notice of appeal liberally, it does not give rise to any inference of an intent to appeal the summary judgment order.
    N.C. Gen. Stat. § 1-278 (2003) provides another means by which an appellate court may obtain jurisdiction to review an order not included in a notice on appeal. It states: "Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment." Id. ThisCourt has held that appellate review pursuant to N.C. Gen. Stat. § 1-278 is proper under the following conditions: (1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment. Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000), disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001). All three conditions must be met. Id. at 642, 535 S.E.2d at 59.
    With respect to the first condition, Rule 46(b) of the Rules of Civil Procedure provides, as to interlocutory orders not directed to the admissibility of evidence, that "formal objections and exceptions are unnecessary." Instead,
        [i]n order to preserve an exception to any such ruling or order or to the court's failure to make any such ruling or order, it shall be sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position.

Id. This Court has held that this requirement may be fulfilled through the filing of an opposition to the motion at issue. Gaunt v. Pittaway, 139 N.C. App. 778, 782, 534 S.E.2d 660, 662-63, appeal dismissed and disc. review denied, 353 N.C. 262, 546 S.E.2d 401 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810, cert. denied, 534 U.S. 950, 151 L. Ed. 2d 261, 122 S. Ct. 345 (2001). This opposition must, however, specify "what action [the non-movant] wanted the trial court to take and the grounds for that action." Inman v. Inman, 136 N.C. App. 707, 712, 525 S.E.2d 820, 823, cert. denied, 351 N.C. 641, 543 S.E.2d 870 (2000).
    Here, plaintiff filed its motion for summary judgment on 27 November 2002 and noticed a hearing on that motion for 9 December 2002. Defendants did not appear at the hearing and the trial court entered its order granting summary judgment on 10 December 2002. Defendants had not filed any response whatsoever to the motion for summary judgment prior to entry of the order resolving the motion. Defendants, however, point to their "Motion to Extend Time to File Opposing Affidavits" _ filed and denied on 12 December 2002, two days after entry of the summary judgment order _ as being sufficient to comply with the requirement of Rule 46. That pro se motion states in its entirety:
            Defendants respectfully request additional time within which to file opposing affidavits in response to plaintiff's motion for summary judgment and in support thereof, shows the Court the following:

            1. Defendants are currently without an attorney of record; and

            2. The notice for summary judgment was served by mail on the Wednesday before Thanksgiving and due to the holiday and the vacation of David and Judy Dillingham, defendants have been unable to prepare opposing affidavits.

            WHEREFORE, dependants respectfully request the Court for 10 days from this date, or such other time as the Court deems just and proper, to submit opposing affidavits in response to plaintiff's motion for summary judgment.

    Even if this after-the-fact motion for additional time is sufficient to "make[] known the action that the party desires thecourt to take," N.C.R. Civ. P. 46(b), it does not comply with Rule 46(b)'s requirement that the party set out "the party's grounds for its position." Id. Nothing in this motion references the basis for any opposition to the motion for summary judgment.   (See footnote 1)
    Alternatively, defendants could have complied with Rule 46(b) by "mak[ing] known to the court the party's objection to the action of the court . . . ." Id. Defendants' Motion to Extend Time to File Opposing Affidavits cannot, however, be viewed as an objection to the court's order granting partial summary judgment since nothing in the motion references the partial summary judgment order or even acknowledges its existence. Our review of the record has not revealed and defendants have not pointed to any other document or statement by defendants, such as a motion pursuant to Rule 59 or Rule 60, that could be considered to be an objection within the meaning of Rule 46(b).
    Because defendants failed to make an objection in accordance with Rule 46(b), they cannot demonstrate compliance with the first procedural prerequisite for review under N.C. Gen. Stat. § 1-278. Since they also failed to reference the order of partial summary judgment in the notice of appeal, we do not have jurisdiction toconsider defendants' first assignment of error addressing the trial court's summary judgment order.

    Defendants' second assignment of error contends that the trial court erred in failing to give their proffered jury instructions. On appeal, this Court considers a jury charge contextually and in its entirety. Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002). The charge will be held sufficient if it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed. Id. The party asserting error bears the burden of showing "that such error was likely, in light of the entire charge, to mislead the jury." Id.
    Defendants requested that 14 special instructions be given to the jury (numbered 1(a) through 1(n)). Instruction 1(a) _ informing the jury (1) that the court had already found that defendants retained plaintiff and that plaintiff provided services to defendants and (2) that the jury was to decide "the amount of money, if any, owed to the Plaintiff for the services it provided Defendants" _ is essentially identical to the instruction actually given. Defendants have shown no reason why their particular instruction should have been given.
    Instructions 1(b), (d), (e), (f), (g), (h), and (i) all seek to have the jury instructed with the pattern jury instructions regarding the elements for contract formation, including the definition of a contract, the requirement of mutual assent andconsideration, and the means by which mutual assent may be proven. Defendants argue that the trial court, by limiting the issue to the amount owed to plaintiff, "ignored the essential dispute between the parties according to the assertions in their pleadings and according to the evidence each presented at trial." Since, however, the trial court had granted summary judgment on the question of liability and the trial related only to the question of how much defendants owed plaintiff, the trial court properly declined to instruct the jury regarding the requirements for proving a contract.
    Proposed instructions 1(c), (j), and (k) set out the fact that the parties had differing contentions regarding the amount to be paid, including plaintiff's contention that the agreement provided for hourly fees and defendants' contention that they had agreed on a flat fee for some work and an hourly fee for other work. A trial court is not, however, required to state the parties' contentions. N.C. Bd. of Transp. v. Rand, 299 N.C. 476, 483, 263 S.E.2d 565, 570 (1980) ("Indeed, the trial court is not required to state the contentions of the parties at all."); York v. N. Hosp. Dist. of Surry County, 88 N.C. App. 183, 191, 362 S.E.2d 859, 865 (1987) ("The trial court is not required to state the contentions of the parties . . . ."), disc. review denied, 322 N.C. 116, 367 S.E.2d 922 (1988).
    Defendants have not specifically argued why the trial court should have given proposed instructions 1(l), (m), and (n) and, therefore, we need not address those instructions. We note,however, that proposed instruction 1(l) sought to have the jury instructed regarding quantum meruit. Since the court had already found that a contract existed, an award based on quantum meruit was not permissible. Maxwell v. Michael P. Doyle, Inc., 164 N.C. App. 319, 328, 595 S.E.2d 759, 765 (2004) ("[R]ecovery in quantum meruit is not, in any event, available when, as here, there is an express contract."). Proposed instructions 1(m) and (n) seek to assert a claim for legal malpractice even though defendants' answer did not allege a counterclaim for legal malpractice. Accordingly, the trial court properly declined to use these proposed instructions.
    In short, defendants have failed to demonstrate that the trial court was required to give their requested instructions. Defendants have not argued any other basis for setting aside the jury verdict. We, therefore, hold that there was no error.

    No error.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1