Appeal by plaintiff from orders entered 12 and 21 October 2005
by Judge Yvonne Mims Evans in Henderson County Superior Court.
Heard in the Court of Appeals 21 September 2006.
Thomas W. Hill, pro se, plaintiff-appellant.
No brief filed for defendants-appellees.
Plaintiff Thomas W. Hill appeals from two orders of the
superior court, the first denying his request for a jury trial on
his motion for sanctions under N.C.R. Civ. P. 11, and the second
denying his motions for sanctions, attorney's fees, and costs. We
conclude that there is no constitutional entitlement to a jury
trial on the factual issues underlying a Rule 11 motion for
sanctions. Further, because our review of the proceedings below
reveals no evidence that could support the entry of such sanctions,
we uphold the trial court's denial of plaintiff's Rule 11 motion.
Finally, because plaintiff previously failed to challenge, in a
prior appeal, the trial court's decision that he was not entitled
to costs under Rule 41, we hold that he is precluded from now
asserting this issue in the present appeal. We, therefore, affirm
the trial court's orders.
This case presents the fifth and most recent appeal in nearly
10 years of ongoing litigation involving the estate of Sadie C.
Hill. Sadie was the mother of five children, including plaintiff
and defendant Garford Tony Hill ("Tony"). At various times after
the death of her husband, Sadie transferred her interest in the
family apple-packing business, an apple orchard containing the
family home, and a second parcel of real estate to Tony and Tony's
wife (defendant Jewel Anne Hill), the only children active with
Sadie in the apple-packing business. Sadie died in March 1997 and her will divided her assets
equally among her children. When the original administratrix of
Sadie's estate (plaintiff's sister, Barbara Garrison) declined
plaintiff's request that she bring suit, plaintiff filed the
present action (97 CVS 725) against defendants in May 1997,
alleging undue influence and fraud with respect to defendants'
business dealings with Sadie and seeking the return of certain
property to Sadie's estate. Although the trial court dismissed
plaintiff's complaint, this Court later reversed that dismissal.
Hill v. Hill
, 130 N.C. App. 484, 506 S.E.2d 299 (1998)
(unpublished), cert. denied
, 537 S.E.2d 213 (1999).
Following the reversal, plaintiff filed a separate action (99
CVS 67) against a variety of defendants, including those in the
present action, alleging misappropriation of corporate funds from
the apple-packing business. The trial court entered summary
judgment against plaintiff on all of his claims in that action and
later awarded defendants their attorneys' fees and costs. This
Court affirmed the trial court's award of summary judgment in Hill
, 147 N.C. App. 313, 556 S.E.2d 355 (2001) (unpublished),
appeal dismissed and disc. review denied
, 356 N.C. 301, 570 S.E.2d
507 (2002), and, in a separate opinion, substantially affirmed the
fees and costs award, reversing only to the extent the trial court
had awarded fees and costs on appeal, Hill v. Hill
, 173 N.C. App.
309, 622 S.E.2d 503 (2005), appeal dismissed and disc. review
, 360 N.C. 363, 629 S.E.2d 851 (2006). On remand in this case, defendants filed a counterclaim and
moved for sanctions under N.C.R. Civ. P. 11. Plaintiff responded
with motions for Rule 11 sanctions as to defendants' counterclaim,
attorneys' fees under N.C. Gen. Stat. § 6-21.5 (2005), and costs
under N.C.R. Civ. P. 41(d). In January 2003, the trial court
granted defendants summary judgment as to plaintiff's claims in
this action, and defendants subsequently voluntarily dismissed
their counterclaim and motion for Rule 11 sanctions without
prejudice. Following plaintiff's appeal, this Court upheld the
entry of summary judgment on plaintiff's claims. Hill v. Hill
2004 N.C. App. LEXIS 1632, 2004 WL 1964898, 166 N.C. App. 279, 603
S.E.2d 168 (2004) (unpublished), appeal dismissed and disc. review
, 359 N.C. 280, 609 S.E.2d 769 (2005).
Plaintiff's motion for Rule 11 sanctions, attorneys' fees, and
costs in connection with defendants' dismissed counterclaim
remained pending after the appeal of the summary judgment ruling.
The trial court addressed these motions after taking testimony and
considering several exhibits. The court ultimately entered orders
denying plaintiff's request for a jury trial on his Rule 11 motion
and declining to award plaintiff sanctions, attorneys' fees, or
costs. Plaintiff timely appealed to this Court.
 At the outset, we note that defendants' attorney, Cindy
Hill Ford, although apparently licensed to practice law in Florida,
is not licensed to practice law in North Carolina. "It is well
settled that an out-of-state attorney has no absolute right topractice law in another forum. It is permissive and subject to the
sound discretion of the Court." State v. Hunter
, 290 N.C. 556,
568, 227 S.E.2d 535, 542 (1976), cert. denied
, 429 U.S. 1093, 51 L.
Ed. 2d 539, 97 S. Ct. 1106 (1977). The conditions under which an
out-of-state attorney may be admitted to practice pro hac vice
this State are set forth in N.C. Gen. Stat. § 84-4.1 (2005).
Nothing in the record suggests that Ms. Ford complied with the
requirements of N.C. Gen. Stat. § 84-4.1 before submitting
defendants' brief to this Court. Further, Ms. Ford has since
declined to return telephone calls from our Clerk of Court. In the
absence of compliance with N.C. Gen. Stat. § 84-4.1, Ms. Ford may
not participate in this appeal. State v. Daughtry
, 8 N.C. App.
318, 319, 174 S.E.2d 76, 77 (1970).
We are aware that Ms. Ford was previously admitted to appear
on defendants' behalf pro hac vice
by the Supreme Court in
connection with one of plaintiff's petitions for discretionary
review. Nevertheless, prior to seeking to represent defendants in
this appellate proceeding, she was required also to file a motion
with this Court. See Selph v. Post
, 144 N.C. App. 606, 609-10, 552
S.E.2d 171, 173 (2001) (noting that out-of-state attorney, who was
admitted to practice pro hac vice
in the trial court, was required
to obtain separate permission from this Court in order to appear in
connection with an appeal); see also
N.C. Gen. Stat. § 84-4.1 (out-
of-state attorneys may "be admitted to practice . . . for the sole
of appearing for a client in the proceeding
added)). We note further that even if Ms. Ford acted in reliance upon
her admission by the Supreme Court in connection with the petition
for discretionary review, she has appeared in this appeal without
associating local counsel, contrary to N.C. Gen. Stat. § 84-4.1(5).
As our Supreme Court has held, "[t]he legislative requirement of
local counsel is . . . mandatory and the court cannot waive it. It
has no discretion in that respect." In re Smith
, 301 N.C. 621,
632-33, 272 S.E.2d 834, 841 (1981).
Because of Ms. Ford's failure to comply with N.C. Gen. Stat.
§ 84-4.1 and the absence of any other counsel appearing on behalf
of defendants, we are compelled to strike defendants' brief as well
as defendants' motions to dismiss and for sanctions. These items
have not, therefore, been considered in the resolution of this
 Plaintiff first argues that he is entitled to a jury trial
as to the factual disputes underlying his Rule 11 motion, namely,
whether defendants' counterclaim was filed for an improper purpose.
Our case law has not specifically addressed this issue.
The North Carolina Constitution provides: "In all
controversies at law respecting property, the ancient mode of trial
by jury is one of the best securities of the rights of the people,
and shall remain sacred and inviolable." N.C. Const. art. I, § 25.
In construing this provision, our Supreme Court has held that the
right to trial by jury applies "only to actions respecting property
in which the right to jury trial existed either at common law or bystatute at the time of the adoption of the 1868 Constitution."
State ex rel. Rhodes v. Simpson
, 325 N.C. 514, 517, 385 S.E.2d 329,
Plaintiff makes no argument _ and we can conceive of none _
suggesting that there is any property right to be vindicated by
receiving a jury trial on the facts underlying a motion for Rule 11
sanctions. Indeed, our Supreme Court concluded in Rhyne v. K-Mart
, 358 N.C. 160, 176, 594 S.E.2d 1, 12 (2004), that an award of
punitive damages was not "property" specifically because
"plaintiff's recovery of punitive damages is fortuitous, as such
damages are assessed solely as a means to punish the willful and
wanton actions of defendants
and, unlike compensatory damages, do
not vest in a plaintiff upon injury."
(Emphasis added.) We find
this rationale controlling: Rule 11 sanctions, like punitive
damages, are assessed only as punishment for the improper actions
of the opposing party. A party's entitlement to Rule 11 sanctions
is not, therefore, an action respecting property, and the trial
court properly denied plaintiff's request for a jury trial.
Additionally, Rule 11 was enacted by our legislature in 1967,
long after the 1868 Constitution. Thus, because the right to seek
Rule 11 sanctions "did not exist at common law or pursuant to
statute in 1868," and Rule 11 itself does not explicitly provide a
right to a jury trial, no such right exists. See State v. Morris
103 N.C. App. 246, 250, 405 S.E.2d 351, 353 (1991) (concluding that
no jury trial right existed for applications for remission of
forfeiture when right did not exist at common law or pursuant tostatute in 1868, and the governing statutes did not create such a
This conclusion is further bolstered by this Court's decision
in Martin v. Solon Automated Servs., Inc.
, 84 N.C. App. 197, 201-
02, 352 S.E.2d 278, 281, appeal dismissed and disc. review denied
319 N.C. 674, 356 S.E.2d 789 (1987), in which we held that trial
court orders imposing discovery sanctions _ without a jury trial _
do "not deny appellants' right to due process or trial by jury."
There is no meaningful distinction for purposes of the right to a
jury trial between Rule 11 sanctions and discovery sanctions. See
Brisson v. Santoriello
, 351 N.C. 589, 595, 528 S.E.2d 568, 571
(2000) (holding that separate rules of civil procedure addressing
the same subject matter must be construed in pari materia
harmonized). This assignment of error is, accordingly, overruled.
 Plaintiff next argues that, even if he was not entitled to
a jury trial under Rule 11, the trial court erred by declining to
enter Rule 11 sanctions against defendants for the filing of their
counterclaim and motion for Rule 11 sanctions against plaintiff.
Rule 11 provides:
Every pleading, motion, and other paper of a
party represented by an attorney shall be
signed by at least one attorney of record in
his individual name, whose address shall be
stated. . . . The signature of an attorney or
party constitutes a certificate by him that he
has read the pleading, motion, or other paper;
that to the best of his knowledge,
information, and belief formed after
reasonable inquiry it is well grounded in fact
and is warranted by existing law or a good
faith argument for the extension,modification, or reversal of existing law, and
that it is not interposed for any improper
purpose . . . .
N.C.R. Civ. P. 11(a). When reviewing the decision of a trial court
to grant or deny a motion to impose sanctions under Rule 11, we
must determine whether the findings of fact of the trial court are
supported by sufficient evidence, whether the conclusions of law
are supported by the findings of fact, and whether the conclusions
of law support the judgment. Turner v. Duke Univ.
, 325 N.C. 152,
165, 381 S.E.2d 706, 714 (1989).
Plaintiff's original complaint alleged fraud and undue
influence by defendants with respect to their business transactions
with Sadie. Plaintiff sought _ among other things _ the return of
certain property to Sadie's estate and limitations on defendants'
capacity to inherit from property "recovered as a result of this
action." In response, defendants' counterclaim pointed to a
forfeiture clause in Sadie's will, which provided that any
beneficiary who contests "any of [Sadie's] legal transactions
during [her] lifetime" forfeited the beneficiary's inheritance
under the will, and sought a declaration that plaintiff had
forfeited his right to share in Sadie's estate. Defendants also
sought the imposition of sanctions under Rule 11 against plaintiff.
In denying plaintiff's motion for Rule 11 sanctions based upon
defendants' counterclaim and Rule 11 motion, the trial court found
that there was no "evidence that could support a finding that the
Defendants or their counsel violated Rule 11 in any respect . . .
." On appeal, plaintiff argues only that the trial court erred bynot finding that defendants' counterclaim and Rule 11 motion were
filed for an improper purpose.
"'[T]he improper purpose prong of Rule 11 is separate and
distinct from the factual and legal sufficiency requirements.'"
Brooks v. Giesey
, 334 N.C. 303, 315, 432 S.E.2d 339, 345 (1993)
(quoting Bryson v. Sullivan
, 330 N.C. 644, 663, 412 S.E.2d 327, 337
(1992)). As a result, even if a paper is well-grounded in fact and
law, it may still have been served or filed for an improper
purpose, and, therefore, violate Rule 11. Id.
, 432 S.E.2d at
Our courts have held that "[a]n improper purpose is 'any
purpose other than one to vindicate rights . . . or to put claims
of right to a proper test.'" Brown v. Hurley
, 124 N.C. App. 377,
382, 477 S.E.2d 234, 238 (1996) (quoting Mack v. Moore
, 107 N.C.
App. 87, 93, 418 S.E.2d 685, 689 (1992)). See also Bryson
N.C. at 663, 412 S.E.2d at 337 (improper purpose is when litigant
hopes only "to harass, persecute, otherwise vex his opponents, or
cause them unnecessary cost or delay"). Whether a paper was filed
for an improper purpose is reviewed under an objective standard,
with the moving party bearing the burden of proving an improper
, 107 N.C. App. at 93, 418 S.E.2d at 689. "[T]he
relevant inquiry is whether the existence of an improper purpose
may be inferred from the alleged offender's objective behavior."
A movant's subjective belief that a paper has been filed for
an improper purpose is immaterial. Id.
"There must be a strong
inference of improper purpose to support imposition of sanctions." Bass v. Sides
, 120 N.C. App. 485, 488, 462 S.E.2d 838, 840 (1995),
, 342 N.C. 651, 467 S.E.2d 703 (1996).
Plaintiff contends that defendants' counterclaim and Rule 11
motion were filed for the "improper purpose" of forcing him to
abandon his attempt to recover assets formerly belonging to his
mother. When viewed under an objective standard, however, the
evidence indicates that the counterclaim was filed to vindicate
defendants' rights under the forfeiture clause in Sadie's will.
Although plaintiff complains that defendants and their counsel were
threatening to deprive him of property should he persist in
litigation, that is indeed what the forfeiture clause provided.
(See footnote 1)
Similarly, as to defendants' motion for Rule 11 sanctions, the
evidence in the record objectively indicates only that defendants
sought to obtain sanctions against plaintiff for bringing a
frivolous claim. Given that this Court concluded in Hill
, 173 N.C.
App. at 314, 622 S.E.2d at 507, that plaintiff had "violated the
factual certification requirement" of Rule 11 when he brought a
substantially similar action against these and other defendants, we
cannot now conclude that defendants' motion for Rule 11 sanctions
against plaintiff for bringing similarly factually dubious claims
was somehow improper. The trial court did not, therefore, err in
finding no evidence of an improper purpose. This assignment of
error is overruled.
 Finally, plaintiff argues that he is entitled to recover
the costs of defending against defendants' counterclaim under
N.C.R. Civ. P. 41(d). In Hill
, 2004 N.C. App. LEXIS 1632 at *17,
2004 WL 1964898 at *5, however, this Court addressed plaintiff's
argument that under "Rule 41(d), defendants must be taxed with the
costs of plaintiff's counterclaim defense." We concluded that
plaintiff had failed to assign error to this issue, and,
accordingly, declined to consider plaintiff's argument. Id. See
N.C.R. App. P. 10(a) ("[T]he scope of review on appeal is
confined to a consideration of those assignments of error set out
in the record on appeal . . . .").
When a party fails to appeal a ruling on a particular issue,
he is then bound by that failure and may not revisit the issue in
subsequent litigation. See In re Estate of Lunsford
, 160 N.C. App.
125, 129 n.1, 585 S.E.2d 245, 248 n.1 (2003) (dismissing, on second
appeal, appellant's constitutional statutory challenge because
appellant failed to raise the issue in his first appeal), rev'd on
, 359 N.C. 382, 610 S.E.2d 366 (2005). Plaintiff may
not now, in a subsequent appeal, circumvent his prior decision to
not assign error to the trial court's denial of his motion for
costs under N.C.R. Civ. P. 41(d). Accordingly, this assignment of
error is overruled.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.