An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1326


Filed: 2 August 2005


v .                         Durham County
                            No. 02 CVS 05202

    Appeal by defendants from an order and judgment entered 25 June 2004 and orders entered 13 July 2004 by Judge Abraham Penn Jones in Superior Court, Durham County. Heard in the Court of Appeals 14 June 2005.

    Rutherford and Associates, by Richard W. Rutherford, for plaintiff-appellee.
    Wallace, Creech & Sarda, LLP., by Peter J. Sarda, for defendants-appellants.

    McGEE, Judge.
    Wanda Wallace (plaintiff) entered into an employment contract (the contract) on 26 June 2001 with TLP International, Inc. (TLP), John Sanders, and John Stopford (collectively defendants). The contract called for performance by plaintiff in the State of North Carolina for which she would be paid $50,000 and a bonus of $87,500. Plaintiff brought an action pursuant to the North Carolina Wage and Hour Act, N.C. Gen. Stat. § 95-25.1_95-25.25, to recover wages, a bonus, and other benefits of employment from defendants. Plaintiff alleged that defendants refused to fulfill theirobligations under the employment contract by refusing to pay plaintiff as specified in the contract.
    The matter was ordered to mediation on 10 October 2003, and on the same date the trial court administrator filed and served a Trial Calendar Notice setting a trial date for 3 November 2003. Defendants moved for a continuance on 17 October 2003, and the trial court granted the motion. A mediation conference was held on 30 October 2003 and resulted in an impasse. Defendants' counsel moved to withdraw as counsel for defendants on 23 February 2004, because "[d]efendants no longer require[d] [their] services." The trial court granted the motion on 16 March 2004.
    The case was calendared for trial on 1 June 2004. Jerry Parisella (Parisella), a TLP employee who was not a licensed attorney, faxed a letter to the trial court on 3 May 2004 on behalf of defendants requesting another continuance. Parisella spoke to the trial court administrator on several occasions but was unable to obtain a continuance. Parisella faxed a similar letter to the trial court on 1 June 2004, the date of trial, again asking for a continuance. Defendants did not make an appearance in person or by counsel at trial on 1 June 2004. Plaintiff presented her own testimony and that of Dr. Liam Fahey, as well as exhibits that were received into evidence. The trial court found that plaintiff had fulfilled all her obligations under the employment contract, that defendants made a promise to pay for plaintiff's services, and that defendants subsequently refused to pay plaintiff in accordance with the contract. The trial court awarded plaintiff $141,374.89 inunpaid wages and expenses, as well as attorney's fees. Defendants filed a motion for a new trial on 22 June 2004. The trial court denied the motion on 13 July 2004. Defendants appeal.
    We note that defendants' brief lacks a Statement of the Grounds for Appellate Review in violation of Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure. This Court may vary the requirements of the Rules of Appellate Procedure to "prevent manifest injustice." N.C.R. App. P. 2. The omission of the Statement of the Grounds for Appellate Procedure is not substantive, nor is it egregious enough to warrant dismissal in this case. See, e.g., N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 542, 553 S.E.2d 420, 422 (2001). Defendants have properly assigned error and argue those assignments of error. In order to prevent manifest injustice, we invoke Rule 2 and decline to dismiss defendants' appeal. The decision by this Court not to dismiss the present case for a minor omission does not lead this Court to "create an appeal for [the] appellant" or to examine any issues not raised by the appellant. Viar v. N.C. Dept. of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).

    Defendants first argue that the trial court entered a default judgment against them, and therefore the trial court erred because the law does not favor default judgments. See Beard v. Pembaur, 68 N.C. App. 52, 56, 313 S.E.2d 853, 855, cert. denied, 311 N.C. 750, 321 S.E.2d 126 (1984). We disagree. A default judgment by a trial court is granted only after an application for such judgment hasbeen made by the moving party. N.C. Gen. Stat. § 1A-1, Rule 55(b)(2) (2003). In this case, there is no such application in the record. It is clear from the record that the trial court reviewed plaintiff's evidence and entered judgment based on the trial court's detailed findings of fact and conclusions of law. The trial court's judgment was not a default judgment. Defendants' argument is without merit.
    Defendants next argue that the trial court abused its discretion in denying their motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. The denial of a motion for a new trial should not be disturbed absent a manifest abuse of discretion. Blow v. Shaughnessy, 88 N.C. App. 484, 493- 94, 364 S.E.2d 444, 449 (1988). Our Supreme Court has held that "an appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that [a] trial [court's] ruling probably amounted to a substantial miscarriage of justice." Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 487, 290 S.E.2d 599, 605 (1982). The party moving to reverse a trial court's denial of a motion for a new trial bears a "heavy burden of proof." Worthington, 305 N.C. at 484-85, 290 S.E.2d at 604.
    Defendant has not met the "heavy burden" of proving that the trial court abused its discretion. See Worthington, 305 N.C. at 485, 290 S.E.2d at 604. Defendant has shown nothing in the record to indicate that the trial court committed a "substantialmiscarriage of justice." The record is clear that the trial court evaluated all the evidence and made findings of fact and conclusions of law. Therefore, it was not a manifest abuse of discretion for the trial court to deny defendants' motion for a new trial.
    Defendants next argue that the trial court erred in denying defendants' request for a continuance in the form of a letter faxed by Parisella to the trial court. We disagree. The letter seeking a continuance was not in the proper form of a motion, was not signed by defendants, and was not made by a licensed attorney. An employee of a corporation, who is not an attorney, may not appear or litigate pro se on behalf of the corporation. N.C. Gen. Stat. § 84-5 (2003). Therefore, the trial court did not err in denying defendants' request for a continuance.
    Defendants also make various arguments in their brief that they should be granted a new trial because they were misled by plaintiff's counsel. Specifically, defendants argue that statements by plaintiff's counsel that he would be retiring and would not be trying the case himself "tended to make the appellants relax and not prepare for trial." Defendants contend they "had been diligently defending the action."
    It is clear from the record that defendants had not been "diligently defending the action," and that their failure to attend the 1 June 2004 trial did not result from any action by plaintiff'scounsel. Defendants were aware that the case was set for trial when they were granted a continuance on 17 October 2003. Defendants chose to assume that because plaintiff might acquire new counsel, the case ceased to progress. Defendants informed the attorneys that represented them in the mediation that defendants no longer required their services. Defendants then failed to employ new counsel. Defendants could have employed counsel in the time period between the 3 May 2004 date of Parisella's first faxed letter and the trial date of 1 June 2004. Defendants could then have filed a proper motion for a continuance. The trial court correctly considered defendants' disregard for their own interests and obligations in deciding not to grant them relief.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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