Opinion
No. COA10-1514
Filed 19 July 2011 This case not for publication
Appeal by Plaintiff from judgments entered 30 April 2011 and 8 July 2011 by Judge Danya L. Vanhook in Jackson County District Court. Heard in the Court of Appeals 8 June 2011.
Robert Allen Sartori, pro se. Andrew Patterson, pro se in the record (no brief filed).
Jackson County No. 09 CVD 285.
Robert Allen Sartori ("Plaintiff") appeals from summary judgment entered in favor of Andrew Patterson ("Defendant") and from denial of Plaintiff's Rule 60 and Rule 59(e) motions. Plaintiff's appeal is dismissed for violations of the North Carolina Rules of Appellate Procedure.
I. Factual and Procedural History
Plaintiff retained Defendant to represent him in a criminal case. Plaintiff contends he deposited $1,000 on account with Defendant as an initial installment on a fixed fee of a greater sum. Defendant agrees he received $1,000. Plaintiff contends he discharged Defendant because services were not rendered pursuant to the terms of their oral agreement. Defendant contends he rendered services worth in excess of $1,000 prior to any discharge by Plaintiff and no refund is due.
Plaintiff filed a complaint against Defendant on 8 February 2009 in small claims court for breach of contract. On 9 April 2009, a magistrate ordered judgment in favor of Plaintiff for $1,000. Defendant appealed the judgment to district court and moved for dismissal for failure to state a claim. On 19 March 2010, a hearing was conducted on Defendant's Motion to Dismiss. The trial court converted Defendant's 12(b)(6) motion to dismiss to a Rule 56(c) motion for summary judgment. Defendant presented the trial court with a hard copy of his motion to dismiss along with a copy of the document noting the hours Defendant worked toward completion of the contract in question. The transcript reflects this presentation when Defendant stated, "Also attached to my motion to dismiss . . . is a copy of the bill for the hours performed." The trial court found Plaintiff had standing to bring the claim for breach of contract, but there was no genuine issue of material fact to submit to the jury. The trial court granted summary judgment in favor of Defendant.
A Rule 12(b)(6) motion to dismiss may be converted into a Rule 56(c) motion for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Charlotte Motor Speedway, Inc. v. Tindall Corp., 195 N.C. App. 296, 300, 672 S.E.2d 691, 693 (2009). A party confronted with such a conversion is entitled to a reasonable opportunity to present all materials made pertinent to a Rule 56 motion. Blackburn v. Carbone, ___ N.C. App. ___, ___, 703 S.E.2d 788, 793 (2010) (internal citations and quotations omitted). Where the non-movant fully participated in the hearing on a motion to dismiss and failed to request a continuance or additional time to produce evidence, a party waives his right on appeal to argue that the trial court erred by converting Defendant's motion. Id. Here, Plaintiff presented an affidavit that was not presented in the original pleadings; the trial court converted the 12(b)(6) motion into a 56(c) motion; and Plaintiff did not request additional time to produce evidence. Therefore, Plaintiff waived his right on appeal to argue that the trial court erred by converting Defendant's motion.
On 7 June 2010, a hearing was conducted on Plaintiff's Motion for Reconsideration pursuant to N.C.R. Civ. P. 60(b) and Plaintiff's Motion to Amend or Alter Judgment pursuant to N.C.R. Civ. P. 59(e). Plaintiff raised the issue of Defendant's failure to respond to a request for admissions. The trial court determined the issue should have been raised at the prior hearing and Plaintiff's opportunity to raise the issue had passed. Plaintiff's motions were denied.
II. Jurisdiction
As Plaintiff appeals from the final judgment of a district court in a civil action, this Court has jurisdiction to hear the appeal pursuant to N.C. Gen. Stat. § 7A-27(c) (2009).
III. Appellate Procedure Violations
North Carolina Rule of Appellate Procedure 34(a)(3) provides the authority for an appellate court, inter alia, to impose a sanction against a party when "a . . . record, or other paper filed in the appeal was 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 court." One available sanction is dismissal of an appeal. N.C.R. App. P. 34(b)(1).
North Carolina Rule of Appellate Procedure 9(a)(1)(j) requires, as a part of the appellate record, the submission of "copies of all papers filed and statements of all proceedings had in the trial court which are necessary to an understanding of all issues presented on appeal, unless they appear in the verbatim transcript of proceedings."
Defendant presented a document at trial ("the document") outlining the hours he completed work for Plaintiff, but the document was not included in the appellate record. The document is necessary to understand whether the trial court erred in granting Defendant summary judgment, because the trial court considered the information presented in the document when it rendered its decision. The trial court stated, "It's undisputed that there was $1,000 paid and that there was — the documents in the file, Mr. Patterson earned his $1,000 . . ." and "[t]he evidence in the file suggests — there's an affidavit from Mr. Patterson of what he spent the money on." (Emphasis added.)
Plaintiff violated N.C.R. App. P. 34 when he did not present Defendant's Motion to Dismiss and the document showing the number of hours billed in the appellate record. Plaintiff "grossly disregarded" a fair presentation of the issues, because the appellate record does not present critical evidence the trial court considered when ruling on Defendant's Motion to Dismiss.
To determine "whether a party's noncompliance with the appellate rules rises to the level of a substantial failure or gross violation, the court may consider, among other factors, whether and to what extent the noncompliance impairs the court's task of review and whether and to what extent review on the merits would frustrate the adversarial process." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191, 200, 657 S.E.2d 361, 366-67 (2008).
Failure to include evidence presented at trial in the record impedes the comprehension of the issues on appeal. Pers. Earth Movers, Inc. v. Thomas, 182 N.C. App. 329, 331, 641 S.E.2d 751, 753 (2007) (holding Rule 9 violated when exhibits were not included in the appellate record and were needed for an understanding of errors asserted). Without a full understanding of the issues at trial, the appellate court is unable to make a fair and reasoned decision as to whether the trial court erred.
If an appellate court determines, under Rule 34(b), the degree of a party's noncompliance with appellate procedure rules warrants dismissal of an appeal, it may consider invoking Rule 2. See Potter v. Homestead Pres. Ass'n, 330 N.C. 569, 576, 412 S.E.2d 1, 5 (1992) (exercising Rule 2 in an action for breach of contract). Rule 2 allows an appellate court to suspend or vary the requirements of the appellate rules on its own initiative. N.C.R. App. P. 2. After a party has violated Rule 34(b), an appellate court may only review the merits on "rare occasions" and under "exceptional circumstances," State v. Hart, 361 N.C. 309, 316, 644 S.E.2d 201, 205 (2007), "[t]o prevent manifest injustice to a party, or to expedite decision in the public interest," N.C.R. App. P. 2. See also Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (explaining that Rule 2 should only be invoked under "exceptional circumstances").
This Court has tended to invoke Rule 2 for the prevention of "manifest injustice" in circumstances in which substantial rights of an appellant are affected. Hart, 361 N.C. at 316, 644 S.E.2d at 205 ("In view of the gravity of the offenses for which defendant was tried and the penalty of death which was imposed, we choose to exercise our supervisory powers under Rule 2 of the Rules of Appellate Procedure and, in the interest of justice, vacate the judgments entered and order a new trial." ( quoting State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984) (per curiam))).
In the case at hand "[t]here are no exceptional circumstances, significant issues, or manifest injustices that would be corrected by our review of the merits of this appeal." Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 228 (2004) (finding appellant failed to timely file and violated Rule 28); see also Beaufort County Bd. of Educ. v. Beaufort County Bd. of Com'rs, 363 N.C. 500, 517-18, 681 S.E.2d 278, 290 reh'g denied, 363 N.C. 663, 684 S.E.2d 691 (2009) (finding no important constitutional questions at issue to invoke Rule 2). We are not persuaded to waive Plaintiff's numerous violations of the appellate rules, and we thus decline to apply Rule 2.
The failure to present critical documents necessary to understand the contentions of the parties is enhanced in Plaintiff's appeal. Plaintiff also violated N.C.R. App. P. 28(b)(5) when he failed to fulfill the requirement of "[a] full and complete statement of the facts . . . underlying the matter in controversy which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be." Plaintiff's brief presented an incomplete and incorrect representation of the facts. Additionally, Plaintiff's statement of facts lacked references to pages in the transcripts or the appellate record and provided the appellate court with only a vague understanding of the case.
Furthermore, Plaintiff violated N.C.R. App. P. 28(b)(4) when he failed to provide a statement of grounds for appellate review. No such statement is presented in the appellate record.
Lastly, Plaintiff violated N.C.R. App. P. 28(b)(6) when he failed to provide a concise statement of the applicable standards of review for each issue of his argument and when he failed to cite to the authorities upon which his argument relied. Defendant sets forth two issues on appeal without citing a standard of review for either.
Our Supreme Court has said the "Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal." Steingress, 350 N.C. at 65, 511 S.E.2d at 299; see also Pers. Earth Movers, Inc., 182 N.C. App. 329, 641 S.E.2d 751 (dismissing case when eight violations of the appellate rules were found). Plaintiff's multiple violations of appellate rules, warrant the dismissal of his appeal.
IV. Conclusion
Even though we have dismissed this appeal, we have reviewed the merits of the appellant's contentions and find them to be without merit.
Due to Plaintiff's gross violations of appellate rules 34, 9 and 28, this appeal is
Dismissed.
Judges HUNTER, ROBERT C., and STROUD concur.
Report per Rule 30(e).