Opinion
No. COA12–909.
2013-03-19
The NORTH CAROLINA STATE BAR, Plaintiff, v. Robert J. BURFORD, Attorney, Defendant.
The North Carolina State Bar, by Deputy Counsel Carmen Hoyme Bannon and Deputy Counsel David R. Johnson, for plaintiff. The Law Office of Robert Burford, by Robert J. Burford, for defendant.
Appeal by defendant and cross-appeal by plaintiff from order entered 5 January 2012 by the Disciplinary Hearing Commission. Heard in the Court of Appeals 28 November 2012. The North Carolina State Bar, by Deputy Counsel Carmen Hoyme Bannon and Deputy Counsel David R. Johnson, for plaintiff. The Law Office of Robert Burford, by Robert J. Burford, for defendant.
GEER, Judge.
Defendant Robert J. Burford appeals from an order of discipline of the Disciplinary Hearing Commission of the North Carolina State Bar (“DHC”). Mr. Burford, however, failed to include in his brief any substantive argument as to why there was error. His contentions are, therefore, deemed abandoned under Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
The North Carolina State Bar has also appealed, arguing that the DHC erred in certain findings of fact and conclusions of law and that the discipline imposed was not adequate to protect the public. Despite filing a notice of appeal, the State Bar did not file an appellant's brief, but rather attempted to argue its contentions within its appellee's brief. The State Bar's contentions are not, therefore, properly before this Court.
Facts
The present case arises from Mr. Burford's representation of 13 clients against a pharmaceutical company for injuries caused by Vioxx. The majority of the clients learned about Mr. Burford through his television ads. The clients were screened by telephone and sent a contingency fee agreement that specified a 40% contingency fee and that the litigation costs and expenses would be borne by the clients.
Ultimately, Mr. Burford's clients' claims were included in a mass tort action filed in Louisiana federal district court. In due course, Mr. Burford's clients participated in a global settlement overseen by the federal court. Under the court-approved settlement, attorneys' fees were capped at 24% with 8% going to counsel who were globally administering the class.
Mr. Burford began receiving settlement checks for his clients in October 2009. When he received the check for each client, he presented the client with a settlement disbursement summary showing how much of the client's recovery would go to common benefit fees and expenses, to Mr. Burford for attorney's fees, to Mr. Burford for litigation costs, and to the client. Mr. Burford used three different versions of the disbursement summary during the time when he was receiving and distributing money to his clients. The first version of the disbursement summary included no itemization of Mr. Burford's costs and expenses. The second contained general categories of costs and expenses, but required the client to agree that Mr. Burford had only estimated some of the costs to the best of his ability. Following an interview with the State Bar, Mr. Burford amended his disbursement summary to include mention of “appropriate mark ups” with regard to costs and expenses.
After a complaint was filed with the State Bar regarding Mr. Burford's fees, the State Bar requested documentation on the fees and costs Mr. Burford had assessed the clients. Mr. Burford did not provide that documentation.
On or about 12 January 2011, the State Bar then filed a complaint with the DHC. The complaint alleged that Mr. Burford's actions in disbursement of the class action settlement funds constituted violations of Rules 1.5(a), 1.5(b), 3.4(c), 5.3(c), 8.4(b), 8.4(c), and 8.4(g) of the North Carolina Rules of Professional Conduct.
During the two-day hearing before the DHC, the State Bar's evidence tended to show that Mr. Burford had improperly charged five of his 13 clients $4,500.00 for an expert witness consultation that benefitted all of his clients. Mr. Burford categorized $62,460.00 as expenses for class notice when it included advertising costs that he had used to recruit clients into the litigation. Mr. Burford also charged clients $100.00 per hour for a contract paralegal he hired to work on the cases even though he only paid her $3,800.00 per month and did not require her to keep track of the hours she worked on the cases. To some of his clients, Mr. Burford forwarded invoices prepared by the paralegal reflecting the $100.00 per hour rate. Finally, Mr. Burford charged one client for travel expenses without providing documentation or apportioning the costs among all of his clients.
At the conclusion of the hearing, the DHC concluded that Mr. Burford had violated Rules 1.5(a), 1.5(b), 3 .4(c), 5.3(c), 8.4(c), and 8.4(g) of the North Carolina Rules of Professional Conduct and imposed a two-year suspension of Mr. Burford's law license. The DHC stayed the suspension for five years subject to Mr. Burford's compliance with several conditions. Mr. Burford timely appealed to this Court, and the State Bar cross-appealed.
Discussion
If an attorney is appealing the suspension of his law license for unprofessional conduct, we would ordinarily expect that the attorney, when representing himself on appeal, would make every effort to file a professional brief fully complying with the Rules of Appellate Procedure. Mr. Burford did not do so.
Under Rule 28(b)(6) of the Rules of Appellate Procedure, a brief must include “[a]n argument, to contain the contentions of the appellant with respect to each issue presented.” The argument section in Mr. Burford's brief, however, contained nothing more than a series of subject headings without any text following the headings. The brief contains no actual discussion of the issues or citation of authority other than two headings' reference to N.C. State Bar v. Talford, 356 N.C. 626, 576 S.E.2d 305 (2003), in support of the bare assertion that the DHC erred in taking the actions challenged in that heading. Mr. Burford's argument section is little better than a table of contents.
Rule 28(b) (6) further provides: “Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.” (Emphasis added.) See also Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008) (noting that “in certain instances noncompliance with a discrete requirement of the rules may constitute a default precluding substantive review,” including failure to comply with Rule 28(b)(6)). Thus, we hold that Mr. Burford has, by providing no argument, abandoned his issues on appeal.
Further, our Supreme Court has emphasized that “[i]t is not the role of the appellate courts ... to create an appeal for an appellant.” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). For this Court to review Mr. Burford's issues, we would have to do the research and analysis that he did not bother to undertake—in other words, we would have to create an appeal for him. See also Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005) (“It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein.”). We decline to do so.
Nearly three months after the calendared hearing date of this appeal, on 21 January 2013, Mr. Burford filed a motion to file a substitute brief and to file a reply brief. In that motion, Mr. Burford asserted that he was not able to afford an attorney and that he had had significant issues with stress and depression. Mr. Burford's motion, however, attaches nothing to support or substantiate the motion's assertions. We, therefore, deny that motion and dismiss Mr. Burford's appeal.
Turning to the State Bar's cross-appeal, the State Bar has argued that the DHC erred in finding that Mr. Burford did not violate Rule 8.4(b) of the Rules of Professional Conduct and in finding that Mr. Burford exhibited remorse and made efforts to rectify the consequences of his misconduct. The State Bar further contends that the stayed suspension imposed by the DHC is inadequate discipline. Because the State Bar's arguments regarding the DHC's disciplinary order do not provide an alternative basis in law for supporting the judgment appealed by Mr. Burford, but rather argue for reversal in part, the State Bar was required to file a cross-notice of appeal, which it did. Williams v. N.C. Dep't of Econ. & Cmty. Dev., 119 N.C.App. 535, 539, 458 S.E.2d 750, 753 (1995).
However, a cross-appellant must also file an appellant's brief and may not simply argue the cross-appeal issues in the appellee's brief. Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 739, 407 S.E.2d 819, 826 (1991) ( “Because on these issues plaintiffs are seeking affirmative relief in the appellate division rather than simply arguing an alternative basis in law for supporting the judgment, they are not entitled to cross-assign error in their appellee's brief. N.C. R.App. P. 10(d). To have properly raised these issues plaintiffs should have filed, but did not file, an appellant's brief.”).
When, as here, a cross-appellant fails to file an appellant's brief, the cross-appeal is deemed abandoned under N.C.R.App. P. 13(c). Countrywide Home Loans, Inc. v. Reed, ––– N.C.App. ––––, ––––, 725 S.E.2d 667, 670 (2012) ( “Because Plaintiff did not file a cross-appellant's brief in this case, we grant Defendants' motion to dismiss Plaintiff's cross-appeal[.]”). See alsoN.C.R.App. P. 13(c) (“If an appellant fails to file and serve a brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the [C]ourt's own initiative.”). Because the State Bar failed to file an appellant's brief, we dismiss its cross-appeal as well.
Dismissed. Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).