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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
No. 03 CVS 10822
NW SIGN INDUSTRIES OF NORTH
CAROLINA, INC., a North Carolina
Corporation, RONALD BRODIE and
Appeal by defendants from order entered 20 October 2006 by
Judge J. Gentry Caudill in Mecklenburg County Superior Court.
Heard in the Court of Appeals 10 October 2007.
James, McElroy & Diehl, P.A., by Richard B. Fennell and Jared
E. Gardner, for plaintiff-appellee.
Vandeventer Black LLP, by David P. Ferrell and Norman W.
Shearin, Jr., for defendants-appellants.
NW Sign Industries of North Carolina, Inc., a North Carolina
Corporation, (NW Sign of N.C.), Ronald Brodie, and Chris Reedel
(collectively, defendants) appeal from an order entered denying
their motion to dismiss. We dismiss defendants' appeal.
Ronald Brodie is the President and CEO of NW Sign Industries,
Inc., a New Jersey Corporation (NW Sign of N.J.) and Chris Reedel
is the Vice President of NW Sign of N.J. and the General Manager of
NW Sign of N.C. This dispute arose out of an employment contractbetween Alan Capps (plaintiff) and NW Sign of N.J. Plaintiff was
employed as a salesperson by NW Sign of N.J. from December 2000
until November 2002. Plaintiff began working in the State of New
Jersey and in January 2001, worked for NW Sign of N.C., at which
time he was added to the NW Sign of N.C. payroll. Plaintiff
alleges NW Sign of N.C. terminated his employment in November 2002
in order to avoid paying him a draw against his 9.09 percent
commission of his sales.
On 9 July 2003, plaintiff filed a complaint asserting
violations of the North Carolina Wage and Hour Act, wrongful
discharge, and breach of contract. Plaintiff amended his complaint
on 15 October 2003 to include a claim for punitive damages. On 19
November 2003, defendants filed their answer, motion for judgment
on the pleadings, motion to dismiss, and counterclaims.
On 17 February 2004, the trial court entered an order denying
defendants' motion for judgment on the pleadings and motion to
dismiss. Defendants appealed. A divided panel of this Court
dismissed defendants' appeal as interlocutory. See Capps v. NW
Sign Indus. of N.C., Inc., 171 N.C. App. 409, 614 S.E.2d 552
(2005), vacated and remanded, 360 N.C. 391, 627 S.E.2d 614 (2006).
Defendants appealed. Our Supreme Court vacated and remanded this
Court's order dismissing defendants' appeal with instructions for
this Court to further remand to the trial court for findings of
fact sufficient for appellate review of the jurisdictional issue.
Capps, 360 N.C. at 392, 627 S.E.2d at 614.
On remand, the trial court entered findings of fact andconclusions of law denying defendants' motion for judgment on the
pleadings and motion to dismiss. Defendants appeal.
Defendants argue the trial court erred by failing to find
plaintiff's original employment contract with NW Sign of N.J. is
III. Motion to Dismiss for Appellate Rules Violations
On 21 June 2007, plaintiff moved to dismiss defendants' appeal
for numerous appellate rules violations. Defendants failed to
amend or correct the errors raised in plaintiff's motion to
A. Appellate Rules Violations
It is well settled that the Rules of Appellate Procedure are
mandatory and not directory. Thus, compliance with the Rules is
required. State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202
(2007) (internal citations and quotations omitted).
Our Supreme Court's interpretation and application of the
Appellate Rules is not new nor has it changed in the past 120
years. In 1889, in the case of Walker v. Scott, our Supreme Court
The impression seems to prevail, to some
extent, that the Rules of Practice prescribed
by this Court are merely directory_that they
may be ignored, disregarded and suspended
almost as of course. This is a serious
mistake. The Court has ample authority to
make them. (The Const., Art. IV, sec. 12; The
Code, sec. 961; Rencher v. Anderson, 93 N.C.
105 [(1885)]; Barnes v. Easton, 98 N.C. 116, 3
S.E. 744 [(1887)].) They are deemed essential
to the protection of the rights of litigants
and the due administration of justice. Theyhave force, and the Court will certainly see
that they have effect and are duly observed,
whenever they properly apply.
102 N.C. 487, 490, 9 S.E. 488, 489 (1889).
Nearly eighty years ago, our Supreme Court also stated:
We have held in a number of cases that the
rules of this Court, governing appeals, are
mandatory and not directory. They may not be
disregarded or set at naught (1) by act of the
Legislature, (2) by order of the judge of the
Superior Court, (3) by consent of litigants or
counsel. The Court has not only found it
necessary to adopt them, but equally necessary
to enforce them and to enforce them uniformly.
Pruitt v. Wood, 199 N.C. 788, 789-90, 156 S.E. 126, 127 (1930)
'[V]iolation of the mandatory rules will subject an appeal to
dismissal.' Hart, 361 N.C. at 311, 644 S.E.2d at 202 (quoting
Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299
(1999)). [W]hen [our Supreme] Court said an appeal is subject to
dismissal for rules violations, it did not mean that an appeal
shall be dismissed for any violation. Rather, subject to means that
dismissal is one possible sanction. Id. at 313, 644 S.E.2d at 203
(internal citations and quotations omitted). Some sanction, other
than dismissal, may be appropriate, pursuant to Rule 25(b) or Rule
34 of the North Carolina Rules of Appellate Procedure. Id. at 311,
644 S.E.2d at 202.
[T]he 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 v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360,361 (2005) (citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E.
302 (1913)). It is therefore necessary to have rules of procedure
and to adhere to them, and if we relax them in favor of one, we
might as well abolish them. Bradshaw, 164 N.C. at 356, 79 S.E. at
302. In our discretion, we review to determine whether some lesser
sanction is appropriate in this appeal.
1. Appellate Rule 10(c)(1)
Plaintiff appropriately moved for and argues that defendants'
appeal should be dismissed and asserts defendants' brief fails to
comply with Rule 10(c)(1) of the North Carolina Rules of Appellate
Procedure. We agree.
The record on appeal contains thirty-four assignments of error
made by defendants. Each of these thirty-four assignments of error
reference only to the first page of multi-page documents.
Rule 10(c)(1) of the North Carolina Rules of Appellate
Procedure states that [a]n assignment of error is sufficient if it
directs the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references. N.C.R. App. P. 10(c)(1) (2007)
Broad, vague, and unspecific assignments of error are
insufficient to satisfy Rule 10. See In re Appeal of Lane Co., 153
N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002) (Assignments of
error [that are] . . . broad, vague, and unspecific . . . do not
comply with the North Carolina Rules of Appellate Procedure[.])
Defendants' failure to include clear and specific record referencesin their assignments of error violates Rule 10(c)(1) of the North
Carolina Rules of Appellate Procedure and subjects their appeal to
2. Appellate Rule 28(b)(6)
Plaintiff also argues defendants' appeal should be dismissed
and asserts defendants' brief fails to comply with Rule 28(b)(6) of
the North Carolina Rules of Appellate Procedure. We agree.
In the argument section of defendants' brief, defendants set
forth five questions presented. Following each of defendants' five
questions presented, defendants cite all thirty-four of their
assignments of error.
Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure states that [i]mmediately 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. N.C.R. App. P.
28(b)(6) (2007) (Emphasis supplied).
This Court has noted that when the appellant's brief does not
comply with the rules by properly setting forth exceptions and
assignments of error with reference to the transcript and
authorities relied on under each assignment, it is difficult if not
impossible to properly determine the appeal. Steingress, 350 N.C.
at 66, 511 S.E.2d at 299 (citing State v. Newton, 207 N.C. 323,
329, 177 S.E. 184, 187 (1934)). Defendants' failure to reference
the assignments of error pertinent to their appeal violates Rule
28(b)(6) of the North Carolina Rules of Appellate Procedure andsubjects their appeal to dismissal. In our discretion, defendants'
Appellate Rules violations are sufficiently egregious to warrant
B. Discretionary Invocation of Appellate Rule 2
In light of our Supreme Court's decision in State v. Hart, we
must determine, in our discretion, whether to invoke and apply Rule
2, despite defendants' appellate rules violations, and review the
merits of its appeal. 361 N.C. 309, 644 S.E.2d 201; see State v.
Patterson, ___ N.C. App. ___, 648 S.E.2d 250 (2007); Dogwood Dev.
& Mgmt. Co., LLC v. White Oak Transp. Co., ___ N.C. App. ___, 645
S.E.2d 212 (2007). Under these facts, and in our discretion ,we
decline to do so.
Rule 2 of the North Carolina Rules of Appellate procedure
To prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly prohibited by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon application of a party
or upon its own initiative, and may order
proceedings in accordance with its directions.
N.C.R. App. P. 2 (2007).
Our Supreme Court has stated, Appellate Rule 2 must be
applied cautiously. Hart, 361 N.C. at 315, 644 S.E.2d at 205.
Rule 2 relates to the residual power of [the] appellate courts to
consider, in exceptional circumstances, significant issues of
importance in the public interest or to prevent injustice which
appears manifest to the court and only in such instances. Id. at315-16, 644 S.E.2d at 205 (emphasis supplied) (citations omitted).
The decision whether to invoke Appellate Rule 2 is discretionary
and is to be limited to rare cases in which a fundamental purpose
of the appellate rules is at stake. Id.
Rule 2 has most consistently been invoked to prevent manifest
injustice in criminal cases in which substantial rights of a
defendant are affected. Id. at 316, 644 S.E.2d at 205 (citing
State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984)).
Nothing in the record or briefs demonstrates exceptional
circumstances to suspend or vary the rules in order to prevent
manifest injustice to a party, or to expedite decision in the
public interest. Id. (citation omitted). The dissenting opinion
agrees that defendant violated the appellate rules but does not
analyze why this appeal presents exceptional circumstances,
significant issues of importance in the public interest, or
affects substantial rights of [the] appellant. Id. In the
exercise of our discretion, we decline to ignore defendants'
uncorrected rules violations, and to invoke Appellate Rule 2.
Defendants' brief violated the North Carolina Rules of
Appellate Procedure. Plaintiff has moved to dismiss defendants'
appeal based on these violations. After service of plaintiff's
motion, defendants have neither moved to amend the record to
correct their assignments of error nor to amend or substitute their
brief to correctly identify which assignments of error are
pertinent to their questions presented. 'The North Carolina Rules of Appellate Procedure are
mandatory and failure to follow these rules will subject an appeal
to dismissal.' Viar
, 359 N.C. at 401, 610 S.E.2d at 360
, 350 N.C. at 65, 511 S.E.2d at 299). [T]he 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. Id
. at 402,
610 S.E.2d at 361 (citing Bradshaw
, 164 N.C. at 356, 79 S.E. at
302). In the exercise of our discretionary authority, we hold
defendants' Appellate Rules violations do not warrant lesser
sanctions and we decline to invoke Appellate Rule 2. Hart
N.C. at 315, 644 S.E.2d at 204-05. Defendants' appeal is
Judge ELMORE concurs.
Judge MCGEE dissents by separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
No. 03 CVS 10822
NW SIGN INDUSTRIES OF NORTH
CAROLINA, INC., a North Carolina
Corporation, RONALD BRODIE and
McGEE, Judge, dissenting.
I do not believe this case should be dismissed and I therefore
respectfully dissent from the majority opinion.
I believe this
case should be heard on its merits and I would impose on Defendants
the printing costs of the appeal.
The majority correctly recognizes that our Supreme Court, in
State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007),
clarified its precedent related to violations of the Rules of
Appellate Procedure: "[W]hen this Court said an appeal is 'subject
to' dismissal for rules violations, it did not mean that an appeal
shall be dismissed for any violation. Rather, 'subject to' means
that dismissal is one possible sanction." Id. at 313, 644 S.E.2d
at 203 (citation omitted). The majority also correctly recognizes
that in Hart, our Supreme Court stated that some sanction, other
than dismissal, may be appropriate for rules violations. Id. at
311, 644 S.E.2d at 202. However, I believe the majority
incorrectly concludes that dismissal is the appropriate sanctionfor Defendants' violations of the Rules of Appellate Procedure.
In Peverall v. County of Alamance, ___ N.C. App. ___, 645
S.E.2d 416 (2007), and McKinley Bldg. Corp. v. Alvis, ___ N.C. App.
___, 645 S.E.2d 219 (2007), both decided after Hart, our Court
declined to dismiss the cases based upon multiple violations of the
Rules of Appellate Procedure. In Peverall, the appellant violated
Rule 28(b)(6) by failing to provide the applicable standards of
review and by failing to cite authority supporting the appropriate
standards of review. Peverall, ___ N.C. App. at ___, 645 S.E.2d at
418. The appellant in Peverall also violated Rule 28(b)(6) and
Rule 10(c)(1) because the appellant's assignments of error in the
record and brief incorrectly referenced the record. Id. at ___,
645 S.E.2d at 418-19.
In McKinley, the appellants violated Rule 28(b)(4) by failing
to cite a statute permitting appellate review. McKinley, ___ N.C.
App. at ___, 645 S.E.2d at 221. The appellants violated Rule
28(b)(6) by failing to define their proposed standard of review and
by failing to cite legal authority in support of that standard of
review. Id. at ___, 645 S.E.2d at 221. The appellants in McKinley
also violated Rule 28(b)(6) and Rule 10(c)(1) by failing to provide
record and transcript references in support of their lone
assignment of error. Id. at ___, 645 S.E.2d at 221.
Nevertheless, in both Peverall and McKinley, our Court
determined that the violations of the Rules of Appellate Procedure
were not sufficiently egregious to warrant dismissal. Peverall,
___ N.C. App. at ___, 645 S.E.2d at 419; McKinley, ___ N.C. App. at___, 645 S.E.2d at 221. Rather, in both cases, our Court ordered
the appellants to pay the printing costs of the appeal and, without
engaging in a Rule 2 analysis, then addressed the merits.
Peverall, ___ N.C. App. at ___, 645 S.E.2d at 419-22; McKinley, ___
N.C. App. at ___, 645 S.E.2d at 221-25.
In the present case, Defendants' rules violations are similar
to the violations at issue in Peverall and McKinley. As in
Peverall and McKinley, I do not believe that the violations in the
present case warrant the dismissal of Defendants' appeal. I would
impose monetary sanctions on Defendants in the form of the printing
costs of the appeal. Having reached the merits, I would affirm the
order of the trial court.
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