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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: 06 November 2007
MINEOLA COMMUNITY BANK, S.S.B.
v. Rockingham County
No. 06 CVS 1223
DAVID EVERSON, and
Appeal by defendants from judgment entered 6 October 2006 by
Judge Richard L. Doughton in Rockingham County Superior Court.
Heard in the Court of Appeals 20 September 2007.
Wyatt Early Harris Wheeler, LLP, by Jason M. Goins, for
Patricia M. Everson, David K. Everson, pro se, defendants-
Where defendants failed to seek a stay of proceedings to
domesticate a foreign judgment based upon the pendency of an appeal
in that jurisdiction, the trial court did not err in giving full
faith and credit to the Texas judgment. The courts of North
Carolina will not tolerate vicious and spurious attacks on the
integrity of opposing counsel and the trial judge.
On 11 July 2006, Mineola Community Bank (plaintiff) filed a
notice of filing of a foreign judgment against David and Patricia
Everson (defendants) in the Superior Court of Rockingham County.
The Upshur County, Texas judgment, dated 22 June 2005, accompaniedthe notice. Defendants filed a Response and Motion to Dismiss on
2 August 2006, asserting ambiguity in plaintiff's notice and
challenging the jurisdiction of the North Carolina courts. The
matter was set for hearing on 22 September 2006.
Defendants failed to appear. The trial court entered an
order finding that the Texas judgment was entitled to full faith
and credit pursuant to N.C. Gen. Stat. § 1C-1700 et seq. and
granting plaintiff's motion to enforce the judgment. Defendants
Judicial Notice of Texas Proceedings
Defendants' appeal of the underlying judgment through the
Texas courts, unmentioned in their responsive pleadings but
referenced in their brief, is necessary background to the appeal in
this matter. We therefore take judicial notice of the Texas
appellate proceedings. The judgment from which appeal was taken
was entered on 22 June 2005. On 31 January 2007, the Twelfth Court
of Appeals of Texas issued a memorandum opinion in which it
affirmed the decision of the trial court. On 14 March 2007,
defendants filed a petition for review by the Supreme Court of
Texas, which dismissed the petition on 1 June 2007. On 3 July
2007, the mandate of the Twelfth Court of Appeals of Texas issued.
In their first argument, defendants contend that the trial
court lacked subject matter jurisdiction because there was a
pending appeal in the Texas courts of the judgment sought to be
enforced. We disagree. Defendants erroneously cite to N.C.G.S. § 1C-1800 et seq., the
North Carolina Foreign Money Judgments Recognition Act, which
governs judgments of governmental unit[s] other than the United
States, any state, or U.S. territory. N.C.G.S. § 1C-1801 (2005)
(emphasis added). By arguing an incorrect statute, defendants have
failed to present authority in support of this assignment of error
and it is dismissed pursuant to N.C. R. App. P. 28(b)(6) (2007).
The controlling statute is N.C.G.S. § 1C-1700 et seq.,
governing recognition of judgments of federal and state courts that
are entitled to full faith and credit in this State. N.C.G.S. §
1C-1702 (2005). Assuming arguendo that the defendants had cited
and argued the correct statute, their argument nonetheless fails
because the defendants failed to comply with the terms of the
statute, which provides a procedure for seeking a stay of the North
Carolina proceedings when the foreign judgment has been appealed.
The judgment debtor may file a motion for
relief from . . . the foreign judgment on the
grounds that the foreign judgment has been
appealed from, or enforcement has been stayed
by, the court which rendered it, or on any
other ground for which relief from a judgment
of this State would be allowed. . . . [T]he
court shall stay enforcement of the foreign
judgment for an appropriate period if the
judgment debtor shows that:
(1) The foreign judgment has been stayed
by the court that rendered it; or
(2) An appeal from the foreign judgment
is pending . . . and the judgment debtor
executes a written undertaking in the
same manner and amount as would be
required in the case of a judgment
entered by a court of this State under
G.S. 1-289. N.C.G.S. § 1C-1705(a) (2005) (emphasis added). Thus, the
proceedings in North Carolina to enforce the judgment will be
stayed upon a showing by the judgment debtor that the foreign court
has stayed the judgment, or that an appeal is pending in the
foreign jurisdiction and defendants have posted a bond in North
Carolina. In this case, defendants did not assert the pendency of
the Texas appeal before the North Carolina court, and the record is
silent as to any bond being posted.
In their second argument, defendants contend that: (1) the
pending appeal in the Texas courts precluded application of the
full faith and credit doctrine; (2) the trial court erred in
entering an order before defendants' appeal in the Texas courts was
resolved; and (3) the failure of plaintiff's counsel to disclose
the pending appeal was intended to perpetrate a fraud on the
court, subvert the trial process, and/or disrupt the court's
functioning. We disagree.
Defendants cite no statutory or common-law authority for their
claim that full faith and credit should not be accorded to a
judgment where the underlying case is pending appeal in the foreign
jurisdiction. Failure to cite authority is a violation of N.C. R.
App. P. 28(b)(6) and subjects this argument to dismissal. See
State v. Cummings,
361 N.C. 438, 479, 648 S.E.2d 788, 812-13
; Atchley Grading Co. v. W. Cabarrus Church, 148 N.C. App.
211, 212-13, 557 S.E.2d 188, 189 (2001).
As noted above, it was defendants' responsibility to seek a
stay of the North Carolina proceedings in the trial court pursuantto N.C.G.S. § 1C-1705(a)(2). We decline to allow defendants to use
spurious and frivolous attacks upon the integrity of opposing
counsel and the trial court as a smokescreen for their failure to
seek a stay. This assignment of error is totally without merit.
Rule 34 of the North Carolina Rules of Appellate Procedure
authorizes this Court to impose sanctions against a party when we
determine that an appeal is frivolous because:
(3) a petition, motion, brief, record, or
other paper filed in the appeal was so grossly
lacking in the requirements of propriety,
grossly violated appellate court rules, or
grossly disregarded the requirements of a fair
presentation of the issues to the appellate
N.C. R. App. P. 34(a)(3) (2007). We hold that defendants have
violated this provision in two respects. In making this ruling, we
have considered defendants' pro se
status, but find their conduct
too egregious to overlook.
First, defendants, in their brief, roundly castigate
plaintiff's counsel for not disclosing to the trial court the
pendency of their appeal of the original Texas judgment. As noted
above, it was incumbent upon the defendants to present to the court
the fact that an appeal was pending and seek a stay. This they did
not do. Instead, defendants have engaged in a deliberate and
unwarranted attack upon the personal integrity of plaintiff's
counsel in an attempt to conceal their own deficient pleadings and
defense of this matter. We hold that these accusations are
grossly lacking in the requirements of propriety and subjectdefendants to sanctions under N.C. R. App. P. 34(a)(3).
conduct will not be tolerated in the appellate courts of this
Second, in the record on appeal, one of defendant's
assignments of error states:
Judge Doughton committed fraud on the court by
failing to uphold the doctrine of stare
decisis and Rule of Law thereby failing to
perform his judicial functions impartially.
The fact that a judge of the trial division of this State has ruled
against a party does not constitute any basis for asserting that
the judge committed fraud or was not impartial. The total
frivolity of this assignment of error is shown by the fact that
defendants failed to argue the matter on brief. We hold that this
assignment is grossly lacking in the requirements of propriety
and subjects defendants to sanctions under N.C. R. App. P.
Such spurious allegations concerning the integrity of
our trial bench will not be tolerated. See State v. Rollins
N.C. App. 601, 607-08, 508 S.E.2d 554, 558-59 (1998).
Defendants' conduct, as set forth above, violates the
provisions of Rule 34(a)(3). Alone, either of these violations
might be overlooked. Taken together, they are egregious and
transcend the tolerance level ordinarily reserved for pro
litigants. Consequently, in our discretion and pursuant to N.C.
R. App. P. 34(b)(2)(a), we impose double costs upon defendants.
Defendants' brief addresses two of four original assignments
Pursuant to N.C. R. App. P. 28(b)(6) (2007), the
remaining assignments of error are deemed to be abandoned.
AFFIRMED. DOUBLE COSTS ASSESSED AGAINST DEFENDANTS.
BRYANT and GEER concur.
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