An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-394


Filed: 17 January 2006

an Infant by and through
RACHEL M. KING, Guardian ad
Litem, and ALEAHA KING, an
Infant by and through RACHEL
M. KING, Guardian ad Litem,

v .                                 Mecklenburg County
                                    No. 04 CVS 8392

    Appeal by plaintiffs and defendants CSX Corporation and CSX Transportation, Inc. from an order entered 22 November 2004 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 November 2005.

    The Fuller Law Firm, P.C., by Trevor M. Fuller, for plaintiff- appellants.

    Millberg, Gordon & Stewart, P.L.L.C., by Elizabeth H. Poremba, John C. Millberg, and William W. Stewart, Jr., for defendant- appellants CSX Corporation and CSX Transportation, Inc.

    HUNTER, Judge.

    Rachel M. King, Brianna King, and Aleaha King (“plaintiffs”) appeal from an order entered 22 November 2004 granting a sanction against their attorney, Trevor M. Fuller (“Fuller”), to CSX Corporation and CSX Transportation, Inc. (collectively “CSX”). We affirm the order of the trial court for the following reasons.     On 9 May 2001, plaintiffs were traveling across a railroad crossing on Nevada Boulevard in Charlotte, North Carolina. Plaintiffs did not see any oncoming trains or warnings of approaching trains at the crossing. Plaintiffs proceeded across the tracks and were struck by a train traveling in reverse.
    Plaintiffs subsequently filed an action on 6 May 2004 against Norfolk Southern Corporation and Norfolk Southern Railway Company (collectively “Norfolk Southern”), the owners of the train which struck plaintiffs. Prior to filing the action, plaintiffs' counsel, Trevor M. Fuller (“Fuller”) conducted a factual inquiry to determine the responsible parties, as ownership of the tracks and railroad crossing was unclear from the police report of the incident. Fuller was unable to discover the owner of the tracks and crossing, but determined that CSX Corporation was a major railroad company that also held significant rail ownership in Charlotte, North Carolina. Plaintiffs named CSX as defendants in the action as well as Norfolk Southern.
    CSX confirmed that they had no ownership interest in the crossing at which the accident occurred with Doug Shoun (“Shoun”), Claims Manager for Norfolk Southern, and contacted plaintiffs, requesting an immediate dismissal. Plaintiffs asked CSX to seek a thirty-day extension to file its answer so plaintiffs could verify ownership of the crossing, and agreed to take no further action against CSX until the matter was confirmed on 17 June 2004. CSX agreed and filed for an extension of time. Plaintiffs contacted Shoun and asked for written confirmation that NorfolkSouthern was the sole owner of the train and tracks, which Shoun agreed to provide pending consultation with counsel. Shoun did not provide the written confirmation to plaintiffs, and continued communication between CSX and plaintiffs did not result in a dismissal. CSX then filed an answer on 23 July 2004, and a motion for summary judgment and sanctions on 1 September 2004. On 8 September 2004, plaintiffs voluntarily dismissed CSX from the case. CSX proceeded on their motions for sanctions, however, and the trial court granted the motion, ordering a sanction in the amount of $487.50 to be paid by plaintiffs' attorney. Plaintiffs and CSX appeal from this order.


    Plaintiffs first contend the trial court erred in imposing sanctions because plaintiffs' factual inquiry was reasonable under the circumstances. We disagree.
    Our Supreme Court has established that sanctions ordered under Rule 11 are reviewable de novo by our appellate courts. Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989). “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, 442 S.E.2d 363, 365 (1994) (citations omitted). “If the appellate court makes these three determinations in the affirmative, it must uphold the trial court's decision to impose ordeny the imposition of mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a).” Turner, 325 N.C. at 165, 381 S.E.2d at 714.
    Plaintiffs contend the trial court erred in finding the complaint against CSX lacked a reasonable factual basis. “[W]hen analyzing the factual sufficiency of a complaint, the court must determine the following: '(1) whether the plaintiff undertook a reasonable inquiry into the facts and (2) whether the plaintiff, after reviewing the results of his inquiry, reasonably believed that his position was well grounded in fact.'” Page v. Roscoe, LLC, 128 N.C. App. 678, 681-82, 497 S.E.2d 422, 425 (1998) (citation omitted).
    Prior to filing the complaint shortly before the statute of limitations expired, Fuller undertook a search using the Internet to determine the ownership of the railroad crossing. Fuller discovered that CSX marketed itself as having the largest rail network in the eastern United States and a significant presence in Charlotte. Fuller also discovered that CSX owned 2,359 railroad crossings in North Carolina. Fuller was not able to discover the actual ownership of the crossing, but concluded as a result of his research that CSX was a “likely responsible party for the accident.”
    The results of such inquiry fail to support a reasonable belief that CSX was the owner of the crossing at which the accident occurred, or was in any way responsible for plaintiffs' accident. We therefore conclude the trial court did not err in finding plaintiffs' complaint was factually insufficient under Rule 11.

    Both plaintiffs and CSX contest the appropriateness of the amount of the sanction imposed by the trial court. We find no abuse of discretion in the sanction ordered by the trial court.
    N.C. Gen. Stat. § 1A-1, Rule 11(a) (2003) states in pertinent part:
        If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

Id. “[I]n reviewing the appropriateness of the particular sanction imposed, an 'abuse of discretion' standard is proper because '[t]he rule's provision that the court “shall impose” sanctions for motions abuses . . . concentrates [the court's] discretion on the selection of an appropriate sanction rather than on the decision to impose sanctions.'” Turner, 325 N.C. at 165, 381 S.E.2d at 714 (citations omitted).
    Plaintiffs contend, without any citation of authority to support their position, that the sanction imposed should have been only nominal, as plaintiffs took steps to avoid defendant having to expend attorney time in defending the case. Our appellate rules require that “[t]he body of the argument . . . shall contain citations of authorities upon which the appellant relies.” N.C.R. App. P. 28(b)(6). Plaintiffs' assignment of error is therefore deemed abandoned. See Byrne v. Bordeaux, 85 N.C. App. 262, 265,354 S.E.2d 277, 279 (1987) (holding assignment of error abandoned for failure to cite authority in support of argument).
    CSX, citing Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 390 S.E.2d 730 (1990), contends that the trial court arbitrarily determined a cut-off date for reasonable expenses and therefore abused its discretion in determining the amount of the sanction. We disagree.
    In Central Carolina, this Court stated that “[the abuse of discretion] standard is intended to give great leeway to the trial court and a clear abuse of discretion must be shown.” Id. at 264, 390 S.E.2d at 737. In that case, the Court found such a clear abuse of discretion, determining that the trial court erred in reducing the established amount of reasonable attorney's fees for defense of the action based on a finding that the professional damages were “'mitigated considerably by the extremely honest, candid and competent representation'” of the respondent's representation. Id. Central Carolina found such a factor irrelevant in light of the established reasonable cost expended by the petitioners in defending against the action, and held its use as a justification for reduction of the sanction to be an abuse of discretion. Id.
    Unlike in Central Carolina, where a reasonable fee was found and then reduced for an arbitrary reason, the trial court here found that the reasonable cost of defending the action was $487.50, the amount of attorney's fees expended until 17 June 2004, when Fuller assured CSX “he would not proceed against them pendingfurther investigation.” The trial court found that no further actions were taken by plaintiffs against CSX which required legal action as plaintiffs continued to await written confirmation from Norfolk Southern that CSX was not a proper party.
    In this case, the trial court's findings and conclusions provided a rational basis for the determination as to the appropriate attorney's fees to award as sanction. We, therefore, find no abuse of discretion on the part of the trial court.
    As plaintiffs' complaint lacked a reasonable factual basis and as the trial court did not abuse its discretion in the award of a sanction, we affirm the order for the reasons stated herein.
    Judges McCULLOUGH and GEER concur.
    Report as per Rule 30(e).

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