Appeal by plaintiffs from an order entered 14 April 2004 by
Judge J. Richard Parker in Pasquotank County Superior Court. Heard
in the Court of Appeals 10 October 2005.
Moore & Moore, by Milton E. Moore; James R. Streeter, for
plaintiff-appellants.
Hall and Horne, L.L.P., by John F. Green, II, for defendant-
appellees Vestal E. Yarbrough and Shirley Yarbrough.
C. Everett Thompson, II for defendant-appellee Edward Winslow
Quality Builders, Inc.
Mary Jane Eisenbeis for defendant-appellee H. Terry Hutchens,
P.A.
G. Wendell Spivey for defendant-appellee Branch Banking and
Trust Company.
Hornthal, Riley, Ellis & Maland, L.L.P., by M.H. Hood Ellis
and L. Phillip Hornthal, III, for defendant-appellees Branch
Banking and Trust Company, Thomas M. Neville, Patricia Davis
and H. Terry Hutchens, P.A.
HUNTER, Judge.
Hercules Cole and Celestine Cole (“plaintiffs”) appeal from an
order entered 14 April 2004 denying plaintiffs' counsel's Motion
for Admission to Practice Pro Hac Vice and granting defendants'
motion for sanctions and attorneys' fees. For the reasons stated
herein, we affirm the judgment of the trial court.
Plaintiffs hired Waverly W. Jones (“Jones”) in October 2003 to
represent them in an action related to the foreclosure on their
house located in Elizabeth City. Jones was licensed to practice inthe state of Virginia, but did not have a North Carolina law
license.
Jones first appeared on behalf of plaintiffs on 13 November
2003 before the Clerk of Superior Court of Pasquotank County at the
scheduled foreclosure hearing. Jones advised the clerk he had been
unable to associate with North Carolina counsel and requested a
continuance, which was granted. A complaint against Branch Banking
and Trust Company (“BB&T”), Thomas M. Neville, Patricia Davis, and
H. Terry Hutchens (collectively “defendants-BB&T”) and Jones's
Motion for Admission to Practice Pro Hac Vice were filed with the
trial court on 18 December 2003. The motion for limited admission
was signed by Katherine Parker-Lowe (“Parker-Lowe”), an attorney
admitted to practice in North Carolina. A hearing on the filed
motions was scheduled on the first available date, 8 March 2004.
The foreclosure hearing was rescheduled for 21 January 2004,
however, due to the ill health of one of the opposing parties.
Jones filed a motion for a preliminary injunction against
defendants-BB&T on 17 January 2004, and moved at the foreclosure
hearing on 21 January 2004 to allow all motions scheduled for 8
March 2004 to be heard. The clerk denied the motion to continue
and proceeded with the foreclosure hearing, ordering that the
trustee could proceed to foreclose on the property. Jones filed an
appeal of the order of foreclosure on behalf of plaintiffs.
Jones also filed an action on behalf of plaintiffs alleging
fraud and other wrongful acts against defendants-BB&T, Vestal E.
Yarbrough and Shirley Yarbrough (“defendants-Yarbrough”), andEdward Winslow Quality Builders, Inc. (“defendant-Quality
Builders)” on 1 March 2004. This complaint sought specific amounts
of damages in excess of $10,000.00. Defendant-Quality Builders
filed a motion to dismiss the complaint on 5 March 2004.
The motions originally scheduled to be heard on 8 March 2004
were cancelled on 2 March 2004 by the trial court and moved to 12
April 2004. Notices of deposition for plaintiffs were received by
Jones on 11 March 2004, and scheduled for 23 March 2004. However,
on 18 March 2004, Jones requested the deposition be rescheduled, as
the hearing had not yet occurred on the motion for admission to
practice. Defendants-Yarbrough's attorney advised Jones on 22
March that they were unable to continue the depositions due to
their clients' poor health. Plaintiffs did not appear for the
scheduled deposition.
On 23 March 2004, Parker-Lowe, the associated North Carolina
counsel, filed a notice of withdrawal of association by local
counsel. On 26 March 2004, defendants-Yarbrough filed a motion for
sanctions for failure to make discovery and motion to dismiss. On
the same day, defendants-BB&T filed a motion to dismiss, motion for
sanctions, and motion for attorneys' fees, and defendant-Quality
Builders also filed a motion for sanctions and attorneys' fees.
On 31 March 2004, plaintiffs filed pro se an amended complaint
against defendants, amending the amount demanded in judgment to “an
amount in excess of Ten Thousand Dollars ($10,000.00)[.]”
Defendant-Quality Builders filed a motion for sanctions and
attorneys' fees, and defendants-Yarbrough and BB&T filed motions todismiss and motions for sanctions and attorneys' fees. Jones again
filed a motion for admission to practice pro hac vice which was
joined by James R. Streeter (“Streeter”), a North Carolina licensed
attorney, on 12 April 2004.
In a hearing on 12 April 2004, the trial court denied Jones's
motion for admission to practice. The trial court also denied
plaintiffs' motion for continuance made by Streeter. Plaintiffs
then elected to take a voluntary dismissal on all claims. The
trial court heard the remaining motions for sanctions and
attorneys' fees and found Jones to have been engaged in the
unauthorized practice of law. The trial court fined Jones
$5,000.00, and ordered plaintiffs and Jones to pay the attorneys'
fees of opposing counsel as sanctions. Plaintiffs appeal.
I.
[1] Plaintiffs first contend that the trial court's delay of
nearly four months before hearing the motion for admission to
practice
pro hac vice deprived them of their fundamental right to
select counsel to represent them. We disagree.
N.C. Gen. Stat. § 84-4.1 (2005) governs the limited practice
of out-of-state attorneys in our North Carolina state courts.
“[P]arties do not have a right to be represented in the courts of
North Carolina by counsel who are not duly licensed to practice in
this state. Admission of counsel in North Carolina pro hac vice is
not a right but a discretionary privilege.”
Leonard v.
Johns-Manville Sales Corp., 57 N.C. App. 553, 555, 291 S.E.2d 828,
829 (1982). “The right to appear
pro hac vice in the courts ofanother state is not a right protected by the Due Process Clause of
the Fourteenth Amendment.”
In re Smith, 301 N.C. 621, 630, 272
S.E.2d 834, 840 (1981). “The Federal Constitution does not
obligate state courts to grant out-of-state attorneys procedural
due process in the grant or denial of their petition for admission
to practice
pro hac vice in the courts of the state.”
Id.
As plaintiffs have no fundamental right to select out-of-state
counsel to represent them in our state courts, we find this
assignment of error to be without merit.
II.
[2] Plaintiffs next contend that the trial court abused its
discretion by denying Jones's motion for admission to practice
pro
hac vice. We disagree.
N.C. Gen. Stat. § 84-4.1 states that the power to allow or
reject an application for limited practice by an out-of-state
attorney lies within the discretion of the trial court.
Id. “'[A]
trial court may be reversed for abuse of discretion only upon a
showing that its actions are manifestly unsupported by reason.'”
Smith v. Beaufort County Hosp. Ass'n., 141 N.C. App. 203, 210, 540
S.E.2d 775, 780 (2000) (citation omitted). “'A ruling committed to
a trial court's discretion is to be accorded great deference and
will be upset only upon a showing that it was so arbitrary that it
could not have been the result of a reasoned decision.'”
Id.
(citation omitted).
A review of the trial court's order fails to reveal a decision
so arbitrary that it could not have been the result of a reasoneddecision. Rather, the trial court noted that Jones had filed two
motions for admission to practice
pro hac vice in the various
actions involved in the suit, and that North Carolina attorneys had
signed statements of intent in connection with both motions.
However, the trial court further found that the North Carolina
attorneys had not signed other papers filed with the court
regarding the related matters, and that Jones had been
participating in the unauthorized practice of law “from the outset
of his representation of the plaintiff.” The trial court then, in
its discretion, denied Jones's motion for admission to practice.
As the trial court clearly set out reasons for its denial of
Jones's motion, we find no abuse of discretion.
Plaintiffs contend, however, that the case of
Holley v.
Burroughs Wellcome Co., 56 N.C. App. 337, 289 S.E.2d 393 (1982),
controls. In
Holley, the trial court found that the attorney's
required affidavit under section 84-4.1 did not meet the
requirements of the statute, but denied the attorney's application
in the exercise of its discretion.
Id. at 344, 289 S.E.2d at 397.
This Court found that the trial court's discretionary power was not
invoked until all of the requirements of the statute were met, and
remanded the case for further proceedings.
Id. at 344-45, 289
S.E.2d at 397.
Holley is distinguishable from the instant case, however.
Here the trial court did not find that Jones had failed to meet the
requirements in his motion for admission to practice. Plaintiffs'
own brief to this Court concedes that Jones's motion was filed inaccordance with N.C. Gen. Stat. § 84-4.1. Rather, the trial court
considered Jones's properly submitted motion, but denied it in its
discretion, based on Jones's unauthorized practice of law.
Plaintiffs' assignment of error is overruled.
III.
[3] Plaintiffs next contend that the trial court abused its
discretion in denying plaintiffs the opportunity to present at
trial evidence as to fraud and the statute of limitations. We
disagree.
The North Carolina Rules of Civil Procedure permit a plaintiff
to take one voluntary dismissal on an action “by filing a notice of
dismissal at any time before the plaintiff rests his case[.]” N.C.
Gen. Stat. § 1A-1, Rule 41(a)(1) (2005). When the “parties
confront each other face-to-face in a properly convened session of
court where a written record is kept of all proceedings, there is
no necessity to file a paper writing in order to take notice of a
voluntary dismissal.”
Danielson v. Cummings, 300 N.C. 175, 179,
265 S.E.2d 161, 163 (1980). “In such a case, oral notice of
dismissal is clearly adequate, and fully satisfies the 'filing'
requirements of Rule 41(a)(i).”
Id.
Such a voluntary dismissal is without prejudice, and “a new
action based on the same claim may be commenced within one year
after such dismissal[.]” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).
“The effect of this provision is to extend the statute of
limitations by one year after a voluntary dismissal.”
Staley v.
Lingerfelt, 134 N.C. App. 294, 298, 517 S.E.2d 392, 395 (1999).“However, the rule may not be used to avoid the statute of
limitations by taking a dismissal in situations where the initial
action was already barred by the statute of limitations.”
Id.
Here, the record reveals that plaintiffs requested a voluntary
dismissal immediately after the trial court, in its discretion,
denied plaintiffs' motion for a continuance. After some discussion
by defendants, plaintiffs asked the trial court for clarification
as to the issue of voluntary dismissal. The trial court stated:
“Your options are you can take voluntary dismissal that was
suggested by Mr. Streeter of all the cases involved or we can
proceed with the Motions to Dismiss. It doesn't make one bit of
difference to me, not one bit of difference. Do you understand
that?” Plaintiffs then conferred with their attorney and affirmed
that they wished to take his advice and take a voluntary dismissal
without prejudice. We find no merit to plaintiffs' contention that
the trial court abused its discretion in denying plaintiffs the
opportunity to present evidence as to fraud and the statute of
limitations, as the record reflects that plaintiffs voluntarily
chose to dismiss all of their claims pursuant to Rule 41(a).
Plaintiffs' assignment of error is therefore overruled.
IV.
[4] Plaintiffs next allege that the trial court erred in
imposing sanctions against plaintiffs and counsel for refusing to
attend a deposition. We disagree.
Plaintiffs contend that the trial court was not authorized to
award attorney's fees under N.C. Gen. Stat. § 1A-1, Rule 37(d)(2005) for plaintiffs' failure to appear for a properly noticed
deposition because defendants did not obtain an order compelling
discovery. N.C. Gen. Stat. § 1A-1, Rule 37(d) states:
(d)
Failure of party to attend at own
deposition or serve answers to interrogatories
or respond to request for inspection.--If a
party . . . fails (i) to appear before the
person who is to take his deposition, after
being served with a proper notice, . . . the
court in which the action is pending on motion
may make such orders in regard to the failure
as are just, and among others it may take any
action authorized under subdivisions a, b, and
c of subsection (b)(2) of this rule.
In lieu
of any order or in addition thereto, the court
shall require the party failing to act to pay
the reasonable expenses, including attorney's
fees, caused by the failure, unless the court
finds that the failure was substantially
justified or that other circumstances make an
award of expenses unjust.
Id. (emphasis added). In interpreting this statute, this Court has
noted that “[a]n order directing compliance with discovery
requests, however, is not a prerequisite to the entry of sanctions
for failure to respond to discovery requests.”
Cheek v. Poole, 121
N.C. App. 370, 373, 465 S.E.2d 561, 563 (1996). “Rule 37 of the
North Carolina Rules of Civil Procedure grants the court
discretionary power to impose sanctions for failure to comply with
discovery requests.”
Rose v. Isenhour Brick & Tile Co., 120 N.C.
App. 235, 240, 461 S.E.2d 782, 786 (1995). “It is well-settled
that 'Rule 37 allowing the trial court to impose sanctions is
flexible, and a “broad discretion must be given to the trial judge
with regard to sanctions.”'”
Id. (citations omitted). Here, plaintiffs do not contest that they failed to appear for
the scheduled depositions, which were properly noticed twelve days
before the scheduled depositions. We note that the record contains
no evidence that plaintiffs moved for a protective order. As an
order directing compliance with discovery is not a prerequisite to
sanctions under Rule 37(d), we find no abuse of discretion in the
trial court's imposition of sanctions for plaintiffs' failure to
appear for scheduled depositions.
V.
[5] In related assignments of error, plaintiffs contend that
the complaints signed and filed by an out-of-state attorney are not
a nullity and further contend that the filing of a notice of appeal
by an out-of-state attorney in an order of foreclosure was not
error.
Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure states:
(6) An argument, to contain the
contentions of the appellant with respect to
each question presented. Each question shall
be separately stated.
Immediately following
each question shall be a 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. Assignments of error not
set out in the appellant's brief, or in
support of which no reason or argument is
stated or authority cited, will be taken as
abandoned.
N.C.R. App. P. 28(b)(6) (emphasis added). In the recent case of
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360,
rehearing denied, 359 N.C. 643, 617 S.E.2d 662 (2005), our SupremeCourt held that when arguments in a party's brief failed to address
the issue challenged in the referenced assignment of error, as
required by Rule 28(b)(6), the party's appeal should be dismissed
for violation of the appellate rules.
Id. at 401-02, 610 S.E.2d at
361.
Here, plaintiffs contend in the third question in their brief
that: “III. Complaints signed and filed by attorney not
authorized to practice law in North Carolina, to prevent the
running of the statute of limitations period, and alleging fraud,
are not a nullity.” In their fourth question, plaintiffs contend:
“IV. Filing notice of appeal from order of clerk allowing
foreclosure on plaintiffs-appellants' home by attorney licensed in
state of Virginia, was not error, where no showing of prejudice was
made.” For both questions presented to the Court, plaintiffs
reference assignments of error 4, 5, and 6 as pertinent to the
questions. Plaintiffs' questions and the legal issues they address
do not correspond to assignments of error 4, 5, and 6, which allege
as error the trial court's denial of the Admission to Practice
Pro
Hac Vice. As our Supreme Court has directed that “the Rules of
Appellate Procedure must be consistently applied; otherwise, the
Rules become meaningless, and an appellee is left without notice of
the basis upon which an appellate court might rule[,]”
Viar, 359
N.C. at 402, 610 S.E.2d at 361, we dismiss these assignments of
error.
VI.
[6] In their remaining assignments of error, plaintiffs
contend, respectively, that the trial court abused its discretion
in denying the motion for continuance made by an attorney licensed
in North Carolina, in forcing plaintiffs to sign a voluntary
dismissal order, and in imposing sanctions against plaintiffs for
defendants' attorneys' fees and sanctions against counsel for
unauthorized practice of law. We also dismiss these assignments of
error for failure to comply with the Rules of Appellate Procedure.
Rule 28(b)(6) of our Rules of Appellate Procedure further
requires that “[t]he body of the argument and the statement of
applicable standard(s) of review shall contain citations of the
authorities upon which the appellant relies.” N.C.R. App. P.
28(b)(6). “The appellate courts of this state have long and
consistently held that the rules of appellate practice, now
designated the Rules of Appellate Procedure, are mandatory and that
failure to follow these rules will subject an appeal to dismissal.”
Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299
(1999).
Plaintiffs have failed to cite any legal authority whatsoever
in support of these arguments. Accordingly, we conclude these
issues do not warrant appellate review and dismiss these
assignments of error.
See Pritchett & Burch, PLLC v. Boyd, 169
N.C. App. 118, 123, 609 S.E.2d 439, 443 (holding assignment of
error abandoned for failure to cite authority in support of
argument),
disc. review dismissed, 359 N.C. 635, 616 S.E.2d 543(2005);
Hatcher v. Harrah's N.C. Casino Co., LLC, 169 N.C. App.
151, 159, 610 S.E.2d 210, 214-15 (2005).
In sum, we find plaintiffs were not deprived of their
fundamental right to select counsel, and the trial court did not
abuse its discretion in denying plaintiffs' counsel's motion for
limited admission or in imposing sanctions for failure to comply
with properly requested discovery. We do not address plaintiffs'
remaining assignments of error as they fail to comply with the
Rules of Appellate Procedure. We, therefore, affirm the trial
court's order.
Affirmed.
Chief Judge MARTIN and Judge STEELMAN concur.
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