Link to original WordPerfect file
Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
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
SELWYN VILLAGE HOMEOWNERS
No. 04 CVS 21480
CLINE & COMPANY, INC.,
Appeal by defendant from order and judgment entered 20
September 2006 by Judge Linwood O. Foust in Mecklenburg County
Superior Court. Heard in the Court of Appeals 10 October 2007.
DeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for
Clontz & Clontz, PLLC, by Ralph C. Clontz, III, for defendant-
Cline & Company, Inc. (defendant) appeals from order entered
enforcing a settlement agreement with Selwyn Village Homeowners
Association (plaintiff) and from judgment entered awarding
plaintiff $26,000.00. We dismiss defendant's appeal.
In June 2003, plaintiff's condominium units were flooded
during a rain storm. During this time, defendant was responsible
for managing plaintiff's homeowners association. Edwards, Church
& Muse, Inc. (ECM) provided hazard insurance to plaintiff.
Plaintiff made a timely claim, together with a proof of loss underthe insurance policy obtained by defendant and EMC for the
association. Plaintiff subsequently discovered the property was
grossly underinsured. Plaintiff brought an action against
defendant and ECM alleging breach of contract and negligence.
On 26 April 2006, during the third day of trial, the parties
settled the case. The settlement agreement provided defendant
shall pay $26,000.00 to plaintiff in installments and the terms of
the settlement shall include a confidentiality and non-
disparagement agreement. The confidentiality and non-disparagement
provisions were to be worked out by the parties in a mutually
agreeable consent order.
On 25 May 2006, while negotiations were underway concerning
the wording of the consent order, plaintiff's counsel was asked by
plaintiff's board of directors to explain the settlement terms to
members of its homeowners association. Defendant discovered this
disclosure and refused to finalize the settlement documents or to
make payment to plaintiff. Defendant argued the disclosure by
plaintiff's counsel to the members of plaintiff's homeowners
association violated the confidentiality and non-disparagement
agreement and rendered the settlement void.
On 12 July 2006, plaintiff filed a notice of voluntary
dismissal with prejudice against ECM regarding this action. On 19
July 2006, plaintiff moved to enforce the settlement agreement.
The trial court granted plaintiff's motion. Defendant appeals.
Defendant argues the trial court erred by: (1) concluding
plaintiff did not breach the terms of the settlement agreement; (2)
finding members of plaintiff's homeowners association were clients
of plaintiff's counsel and were entitled to receive the settlement
information; (3) concluding plaintiff's counsel did not intend his
report to disclose information other than what related to the
settlement agreement; (4) finding that Kelly Ann Cline
surreptitiously recorded communications between plaintiff's
counsel and plaintiff's members; (5) concluding the disclosures
made by plaintiff's counsel were not damaging to defendant; and (6)
entering judgment against defendant.
III. Motion to Dismiss for Appellate Rules Violations
On 18 May 2007, plaintiff moved to dismiss defendant's appeal
for numerous appellate rule violations. Defendant has 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 neither new nor has 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 prescribedby 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. They
have 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. at311, 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)).
1. Appellate Rule 28(b)(6)
Plaintiff appropriately moved for and argues that defendant's
appeal should be dismissed for failure to comply with Rule 28(b)(6)
of the North Carolina Rules of Appellate Procedure. We agree.
In the argument section of defendant's brief, defendant states
the questions presented and references the assignments of errors
pertinent to the question. Defendant failed to identify the pages
at which the assignments of error appear in the record following
the questions presented.
Appellate Rule 28(b)(6) provides, in relevant part, that an
appellate brief shall contain:
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.
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 notimpossible 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)). Defendant's failure to identify
any assignment of error by the page where it appears in the record
following the question presented violates Appellate Rule 28(b)(6)
and subjects its appeal to dismissal.
2. Appellate Rule 26(g)
Plaintiff also argues defendant's appeal should be dismissed
for failure to comply with Rule 26(g) of the North Carolina Rules
of Appellate Procedure. We agree.
Appellate Rule 26(g)(1) provides, in relevant part, [t]he
format of all papers presented for filing shall follow the
additional instructions found in the Appendixes to these Appellate
Rules. N.C.R. App. P. 26(g)(1) (2007) (emphasis supplied).
Appendix B states, [t]he index should be indexed approximately
3/4 from each margin, providing a five inch line. N.C.R. App. P.
apps. b (2007). [C]aptions, headings, and long quotes should be
single-spaced. Id. Appendix E states, [t]he Appendix should
include a table of contents, showing the pertinent contents of the
appendix, the transcript or appendix page reference and a reference
back to the page of the brief citing the appendix. N.C.R. App. P.
apps. e (2007).
In Lewis v. Craven Reg'l Medical Ctr., this Court stated,
[b]ecause defendants have not complied with Rule 26, we could
elect not to consider their brief . . . 122 N.C. App. 143, 147,
468 S.E.2d 269, 273 (1996), aff'd, 352 N.C. 668, 535 S.E.2d 33(2000); see Bradshaw, 164 N.C. at 356, 79 S.E. at 302 (The motion
of the appellee to dismiss the appeal for failure to print the
record and briefs in accordance with the rules of this Court is
allowed.). Defendant's brief violates Appellate Rule 26(g)(1) by
containing: (1) an improper index margin; (2) double-spaced
captions and headings; and (3) no appendix page reference.
Defendant acknowledged its violations of these rules and has made
no attempt to correct, amend, or substitute its brief. Defendant's
failure to comply with Appellate Rule 26(g)(1) subjects its appeal
to dismissal. Id.
B. Discretionary Invocation of Appellate Rule 2
In light of our Supreme Court's decision in Hart, we must
determine whether to invoke and apply Rule 2 despite defendant's
appellate rules violations and review the merits of its appeal.
361 N.C. 309, 644 S.E.2d 201. Under these facts, we decline to do
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 NorthCarolina 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. at 315-16, 644 S.E.2d at
205 (citations omitted) (emphasis supplied). 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. Appellate 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). In the exercise our
discretion, we decline to ignore defendant's uncorrected rules
violations and to invoke Appellate Rule 2.
Defendant committed numerous violations of the North Carolina
Rules of Appellate Procedure. Plaintiff has moved to dismiss
defendant's appeal. After service of plaintiff's motion, defendant
failed to amend or correct its admitted violations and deficiencies
'The North Carolina Rules of Appellate Procedure are
mandatory and failure to follow these rules will subject an appealto dismissal.' Viar, 359 N.C. at 401, 610 S.E.2d at 360 (quoting
Steingress, 350 N.C. at 65, 511 S.E.2d at 299). [T]he Rules of
Appellate Procedure must be consistently applied; otherwise [they]
become meaningless. Id. at 402, 610 S.E.2d at 361 (citing
Stansberry, 164 N.C. at 356, 79 S.E. at 302). In the exercise of
our discretionary authority, we decline to invoke Appellate Rule 2.
Hart, 361 N.C. at 315, 644 S.E.2d at 204-05. Defendant's appeal is
Judges MCGEE and ELMORE concur.
*** Converted from WordPerfect ***