Opinion
No. COA10-763
Filed 5 April 2011 This case not for publication
Appeal by plaintiffs from order entered 15 March 2010 by Judge Richard L. Doughton in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 January 2011.
Law Offices of J. Neal Rodgers, by J. Neal Rodgers, for plaintiffs-appellants. Baucom, Claytor, Benton, Morgan Wood, P.A., by James F. Wood, III, for defendants-appellees.
Mecklenburg County No. 08-CVS-16073.
Plaintiffs brought this action alleging violation of N.C.G.S. § 168A-6 (North Carolina Persons with Disabilities Protection Act), negligence, wrongful death, and gross, willful, and wanton negligent conduct. During the trial of the action, the parties engaged in settlement negotiations and counsel for all parties represented to the trial court that the matter had been settled. However, when defendants tendered the settlement amount, release of claims, and dismissal, plaintiffs declined to execute the documents and returned the settlement check, contending that they had misunderstood the terms, had not given their attorney actual authority to make the settlement representation, and had not agreed to the settlement.
Defendants moved to enforce the settlement. After a hearing, the trial court entered an order on 11 December 2009 in which it found that plaintiffs' counsel had accurately informed his clients of the terms of the settlement and that plaintiffs had authorized him to accept the offer on their behalf and to represent to the court that the claims had been settled in accordance with the agreement. The court also found that to the extent plaintiff Larry Mullis contended he had not understood the terms of the settlement, any misunderstanding was not induced by any fraud on the part of defendants. The trial court ordered that the settlement agreement be enforced and that plaintiffs' claims be dismissed. Plaintiffs gave notice of appeal.
On 24 February 2010, defendants moved to dismiss plaintiffs' appeal, alleging violations of Rules 7 and 11 of the Rules of Appellate Procedure. After a hearing, the trial court entered an order on 15 March 2010 in which it found that plaintiffs "violated Rule 7 of The Rules of Appellate Procedure by failing to file and serve written documentation of the transcript contract" and "failed to file the proposed record on appeal written thirty five (35) days of [sic] the filing of the Notice of Appeal." The trial court dismissed plaintiffs' appeal. Plaintiffs now attempt to appeal from the 15 March 2010 order dismissing their earlier appeal.
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Plaintiffs purport to appeal the trial court's 15 March 2010 order dismissing their appeal from the 11 December 2009 order enforcing the settlement agreement. However, "[n]o appeal lies from an order of the trial court dismissing an appeal for failure to perfect it within apt time[. Rather,] the proper remedy to obtain review in such case[s is] by petition for writ of certiorari." State v. Evans, 46 N.C. App. 327, 327, 264 S.E.2d 766, 767 (1980) (citing Lightner v. Boone, 221 N.C. 78, 84, 19 S.E.2d 144, 148 (1942), superseded by statute on other grounds as recognized in Matthews v. Watkins, 91 N.C. App. 640, 650-51, 373 S.E.2d 133, 139 (1988), aff'd, 324 N.C. 541, 379 S.E.2d 857 (1989); Chozen Confections, Inc. v. Johnson, 220 N.C. 432, 434, 17 S.E.2d 505, 506 (1941)); see also Sleath v. Adams, 183 N.C. App. 156, 643 S.E.2d 678 (2007) (unpublished) (holding that no right of appeal lies from the order of the trial court granting a motion to dismiss for defendant's failure to timely comply with Rules 7 and 11). Plaintiffs have not sought review of the trial court's order by writ of certiorari pursuant to N.C.R. App. P. 21(a).
Nevertheless, we exercise the discretion granted us by App. Rule 21, and treat the attempted appeal as a petition for writ of certiorari in order to consider the merits of the contentions made. See Evans, 46 N.C. App. at 328, 264 S.E.2d at 767.
Turning to the merits of plaintiffs' argument, there is no question that plaintiffs violated the Rules of Appellate Procedure in both respects found by the trial court. They contend, however, relying on Dogwood Development Management. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008), that such violations were not substantial. In Dogwood, our Supreme Court observed that the "`[r]ules of practice and procedure are devised to promote the ends of justice, not to defeat them,'" id. at 194, 657 S.E.2d at 363 (quoting Hormel v. Helvering, 312 U.S. 552, 557, 85 L. Ed. 1037, 1041 (1941)), and instructed that noncompliance with the appellate rules "does not, ipso facto, mandate dismissal of an appeal." Id. Rather, "[w]hether and how a court may excuse noncompliance with the rules depends on the nature of the default." Id.
In this case, the trial court concluded that plaintiffs' violations of the Rules of Appellate Procedure were "substantial" and therefore warranted dismissal. While plaintiffs challenge the conclusion, they offer in their brief no suggestion of the applicable standard for reviewing it. In fact, "[t]he determination of what sanction, if any, should be imposed under Rule 41(d) . . . lies in the sound discretion of the trial court." Goss v. Battle, 111 N.C. App. 173, 177, 432 S.E.2d 156, 159 (1993) (citing Thompson v. Hank's of Carolina, Inc., 109 N.C. App. 89, 93, 426 S.E.2d 278, 281 (1993); Rivenbark v. Southmark Corp., 93 N.C. App. 414, 420, 378 S.E.2d 196, 200 (1989)).
This Court, in Ritter v. Ritter, 176 N.C. App. 181, 183-84, 625 S.E.2d 886, 888, appeal dismissed and disc. review denied, 360 N.C. 483, 632 S.E.2d 490 (2006), dismissed an appellant's appeal for the same violations as found by the trial court in this case. We cannot, therefore, fault the trial court's exercise of discretion in concluding such violations to be substantial here. Plaintiffs' attempted appeal from the order dismissing their appeal is therefore dismissed.
Appeal dismissed.
Judges HUNTER and THIGPEN concur.
Report per Rule 30(e).