Opinion
No. COA03-1187
Filed August 3, 2004 This case not for publication
Appeal by defendant Susan W. Boylin from judgment dated 4 April 2003 and supplemental order dated 25 April 2003 by Judge W. David Lee in Anson County Superior Court. Heard in the Court of Appeals 19 May 2004.
No brief filed for plaintiff-appellee. Wilson Ratledge, PLLC, by Perry J. Pelaez, for defendant-appellant Susan W. Boylin. Harrington Law Firm, by Larry E. Harrington, for defendant-appellees Paul Boylin and James Boylin.
Anson County No. 02 CVS 319.
Susan W. Boylin (defendant) appeals a judgment dated 4 April 2003 and supplemental order dated 25 April 2003 determining the ownership of certain personal property.
Margaret Wilson Boylin (the decedent) died on 12 August 1999 and was survived by her three children, F. Paul Boylin, III, James G. Boylin, II, and Susan W. Boylin (collectively the Heirs). The decedent's will equally distributed all of her personal propertyamong the Heirs. Pursuant to the terms of the will, each Heir was named as an executor to the estate.
During the course of the administration of the estate, a dispute arose between the Heirs concerning the ownership of certain items of personal property. Ultimately, the clerk of superior court removed the Heirs as executors and appointed H. Ligon Bundy (plaintiff) as administrator of the estate.
After unsuccessfully attempting to inventory the estate, plaintiff filed a complaint, and later an amended complaint, seeking a declaratory judgment pursuant to the provisions of N.C. Gen. Stat. §§ 1A-1, Rule 57 and 1-253 et seq, to have the trial court determine the title of each item of disputed property.
This matter came on for a bench trial at the 21 March 2003 civil session of Anson County Superior Court. By judgment dated 4 April 2003, the trial court determined ownership of the estate property. By supplemental order dated 25 April 2003, the trial court mandated that defendant deliver to plaintiff certain items determined to be property of the estate. Defendant filed notice of appeal from the judgment and order on 2 May 2003.
Rules of Appellate Procedure Violations
"`The appellate courts of this state have long and consistently held that the rules of appellate practice, now designated the [r]ules of [a]ppellate [p]rocedure, are mandatory and that failure to follow these rules will subject an appeal to dismissal.'" Holland v. Heavner, ___ N.C. App. ___, ___, 595 S.E.2d 224, 226 (2004) (citing Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)); see also Campbell University v. Harnett County, ___ N.C. App. ___, ___, 589 S.E.2d 890, 890 (2004) ("Upon careful review of homeowner-intervenors' brief and their assignments of error, we agree that the gravity of the violations warrants dismissal of homeowner-intervenors' appeal."). "Our Supreme Court has consistently recognized, for nearly a hundred years `"[i]t 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."'" Holland, ___ N.C. App. at ___, 595 S.E.2d at 226 (citations omitted).
Rule 28 of the appellate rules states that the argument section of an appellate brief must "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). In the instant case, defendant failed to properly designate the assignments of error corresponding to each of her five arguments, which we note with greater specificity in the body of this opinion.
In addition to the violations identified above, we note that the footnotes in defendant's brief fail to comply with the font-size requirements of Rule 26(g) of the rules of appellate procedure. N.C.R. App. P. 26(g). Further, defendant has failed to include a statement of the basis for appellate jurisdiction and a certificate of compliance in violation of Rules 28(b)(4) and 28(j)(2)(A)(2). N.C.R. App. P. 28(b)(4); 28(j)(2)(A)(2).
Due to the nature of the rule violations, "it is difficult ifnot impossible to properly determine the appeal." Steingress, 350 N.C. App. at 66, 511 S.E.2d at 299. Our Court has on previous occasions decided to reach the merits of an appeal, notwithstanding violations of the rules of appellate procedure, by exercising its discretion pursuant to Rule 2 of the rules of appellate procedure. Rule 2 grants this Court the opportunity to "suspend or vary the requirements or provisions of any of these rules in a case pending." N.C.R. App. P. 2. "`Rule 2 relates to the residual power of our 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.'" Holland, ___ N.C. App. at ___, 595 S.E.2d at 227 (quoting Steingress, 350 N.C. at 66, 511 S.E.2d at 299-300).
Defendant's violations of the rules of appellate procedure are troubling. Nevertheless, we exercise our discretion to suspend the rules and consider defendant's appeal on the merits.
The issues on appeal are whether: (I) the trial court erred in determining that the agreement (plaintiff's exhibit 7) was a void and unenforceable contract; (II) the trial court's finding of fact no. 11 is supported by the evidence presented; (III) the trial court erred when it failed to comply with N.C. Gen. Stat. § 1A-1, Rule 52; (IV) the trial court erred when it amended its judgment more than ten days after the entry of final judgment; and (V) the trial court erred when it excluded testimony of Mary Ford pursuant to N.C. Gen. Stat. § 8C-1, Rule 601.
I
In her first question presented, defendant contends "[t]he trial court erred when it determined that the `agreement' [plaintiff's exhibit 7] was a void and unenforceable contract." This issue appears to challenge the trial court's conclusion of law no. 6, which states in pertinent part: "That these circumstances, both independently and cumulatively, render [the agreement] void and legally unenforceable as a contract among the parties." Although defendant's brief lists assignment of error no. 1 as the pertinent assignment of error for this question presented, only assignment of error no. 8 references conclusion of law no. 6. Defendant assigns error to "[t]he trial court's conclusion of law no. 6, on the ground that there was sufficient evidence presented at trial to support the conclusion that there was a binding agreement between the parties regarding the ownership of certain personal property." No other assignment of error directly or indirectly references conclusion of law no. 6 or the enforceability of the agreement.
Under this section of defendant's brief, however, she actually argues that the trial court should have found estoppel by benefit, which particular argument is not the subject of any assignment of error. The arguments raised in defendant's brief as to conclusion of law no. 6 are, therefore, not properly before this Court. 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 in accordance with this Rule 10."); State v. Thomas, 332 N.C. 544, 554, 423 S.E.2d 75, 80 (1992) ("No assignment of error corresponds to the issue presented, and therefore, this matter is not properly presented for our consideration."), overruled on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998).
II
Defendant's second argument contends "the trial court's finding of fact no. 11 is unsupported by and contrary to the evidence." Although defendant's brief matches this question presented with assignment of error no. 2, it is actually the subject of assignment of error no. 6. Specifically, defendant challenges that portion of finding of fact no. 11 in which "the trial court found that at the conclusion of the Inventory but prior to signing the Agreement, the Administrator disclosed the [s]ons' objections to [defendant] and then demanded that the Heirs sign the Agreement under the threat of having the inventoried items removed for storage at great expense." (emphasis in the original). Defendant contends the evidence actually establishes that plaintiff did not disclose the sons' objections until after the agreement was signed. Even if defendant is correct, defendant does not explain in her brief how this finding is material to the trial court's decision. However, because it is not the responsibility of this Court to scan the record to determine in the first instance how a party has been prejudiced by a particular finding, this assignment of error is overruled.
III
In her third argument, defendant asserts "[t]he trial court erred when it failed to comply with [N.C. Gen. Stat. § 1A-1, Rule 52] by failing to make findings of fact sufficient to support its judgment as to the ownership of 73 items of personal property." Although defendant's brief refers to assignment of error no. 3, this argument is, in fact, not the subject of any assignment of error. Not one of defendant's assignments of error contends that the trial court's findings of fact are insufficient to support its conclusions of law. The question is, therefore, not properly before this Court. Thomas, 332 N.C. at 554, 423 S.E.2d at 80.
IV
Defendant's fourth argument states "[t]he trial court erred when it amended its judgment more than ten days after the entry of judgment." This question appears to arise out of assignment of error no. 9. We disagree with defendant's characterization of the trial court's supplemental order as an amendment. That order, dated 25 April 2003, scheduled a hearing on the apportionment of costs and, in response to a motion by plaintiff, directed defendant to deliver to plaintiff or his authorized representative all of the items on an attached exhibit by 1 May 2003. In its judgment, the trial court declared those items to be the property of the estate. Plaintiff's verified motion indicated that he had made a written demand for the missing property, but defendant had not responded. By ordering defendant to produce the items, the trial court was not amending its prior order, but rather enforcing it. The trial court is vested with requisite authority of enforcement. See Wildcatt v. Smith, 69 N.C. App. 1, 11, 316 S.E.2d 870, 877 (1984) ("[W]hile a court loses jurisdiction over a cause after it renders a final decree, it retains jurisdiction to correct or enforce its judgment."); Sturgill v. Sturgill, 49 N.C. 580, 587, 272 S.E.2d 423, 428 (1980) (the trial court had authority to enforce judgment for alimony by subsequently requiring execution of assignment of wages); Parker v. Parker, 13 N.C. App. 616, 618, 186 S.E.2d 607, 608 (1972) (court has power to enforce its decree by subsequently requiring defendant to post a bond). This assignment of error is therefore overruled.
V
Defendant's fifth and final argument contends "[t]he trial court erred when it excluded testimony of Mary Ford based on [N.C. Gen. Stat. § 8C-1, Rule 601]." This contention is the subject of assignment of error no. 3, although defendant's brief lists assignment of error no. 5. The disputed testimony apparently relates solely to the ownership of a corner cupboard. Ford was allowed to testify that defendant's father gave defendant the corner cupboard, and that defendant's father was present when defendant transferred the cupboard from the father's house to defendant's home. The trial court, however, prevented Ford from testifying as to additional statements regarding the details of the gift.
Defendant bore the burden of showing that had the trial court admitted the excluded testimony, a different result would likely have occurred. N.C.G.S. § 1A-1, Rule 61 (2003) ("No error ineither the admission or exclusion of evidence . . . is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action amounts to the denial of a substantial right."); Warren v. City of Asheville, 74 N.C. App. 402, 409, 328 S.E.2d 859, 864 (1985) (citation omitted) ("`The burden is on the appellant not only to show error, but also to enable the Court to see that he was prejudiced and that a different result would have likely ensured had the error not occurred.'"). Based on our review of the record and the trial court's decision, we do not believe defendant has met her burden.
For the foregoing reasons, we affirm.
Affirmed.
Judges ELMORE and GEER concur.
Report per Rule 30(e).