Opinion
No. COA10-1221
Filed 17 May 2011 This case not for publication
Appeal by plaintiff from judgment entered 9 July 2010 by Judge W. Osmond Smith, III, in Caswell County Superior Court. Heard in the Court of Appeals 9 March 2011.
John C. Randall for plaintiff-appellant. Womble Carlyle Sandridge Rice, PLLC, by Amanda G. Ray and Johnny M. Loper, for defendants-appellees.
Caswell County No. 08 CVS 386.
Where plaintiff's brief, containing substantial violations of the North Carolina Rules of Appellate Procedure, impairs our ability to review this appeal effectively, we dismiss the appeal.
Facts and Procedural History
The evidence tends to indicate the following: In October 1994, Earl J. Smith (plaintiff) opened a brokerage account with JB Oxford Company (JBOC). The JBOC account agreement that plaintiff signed included a clause that stated the following:
In consideration of [JBOC]opening Cash or Cash and Margin Brokerage Account(s), I/we ("I") agree as follows: . . . 14. I (WE) FURTHER ACKNOWLEDGE THAT I (WE) HAVE RECEIVED, READ AND UNDERSTAND THE PRE-DISPUTE ARBITRATION CLAUSE LOCATED IN THE JBOC DISCLOSURE BROCHURE, PARAGRAPH 55, AND AGREE TO RESOLVE ANY DISPUTE ARISING OUT OF MY (OUR) CASH, MARGIN AND/OR OPTION ACCOUNT(S) BY ARBITRATION.
In 2004, TD Ameritrade, Inc., (Ameritrade) purchased certain accounts of JBOC, including plaintiff's account. Subsequently, on 7 September 2004, Ameritrade sent plaintiff a "Negative Consent" letter informing him that his account holdings at JBOC would automatically transfer to Ameritrade and its clearing division at the close of the regular market session on 8 October 2004. The letter further stated that the transfer would "occur automatically, unless [plaintiff] contact[ed] [JBOC] by October 1, 2004." Plaintiff was also sent the "Terms and Conditions" of his account with Ameritrade. The "Terms and Conditions" stated the following, in pertinent part:
THE FOLLOWING IS A LEGALLY BINDING CONTRACT BETWEEN ME AND AMERITRADE, INC. AND IT GOVERNS MY USE OF THE AMERITRADE WEB SITE, ITS CONTENT, SERVICES AND MY ACCOUNT WITH AMERITRADE.
BY OPENING AN AMERITRADE ACCOUNT AND BY ELECTRONICALLY SIGNING THE ACCOUNT APPLICATION, CONDUCTING ACCOUNT TRANSACTIONS OR CONTINUING TO USE THE AMERITRADE WEB SITE, I AM ACCEPTING AND AGREEING TO ABIDE BY ALL OF THESE TERMS AND CONDITIONS.
. . .
31. Ameritrade reserves the right at any time to amend, change, revise, add, or modify the terms and conditions set forth in this Agreement without prior notice to me.
. . .
Arbitration Disclosure and Agreement
91. The following arbitration provision will apply to any controversy or claim that arises between me and Ameritrade:
a) Arbitration is final and binding on the parties.
b) The parties are waiving their right to seek remedies in court, including the right to jury trial.
. . .
92. All controversies concerning (a) any transaction, (b) the construction, performance or breach of this or any other agreement, whether entered into prior to, on or after the date of this Agreement, or (c) any other matter which may arise between Ameritrade and me shall be determined by arbitration[.]
After plaintiff failed to contact JBOC by the 1 October 2004 deadline, his account was transferred to Ameritrade. Plaintiff continued to use his account at Ameritrade to trade stocks after this 2004 transfer and up until March 2007. In 2007, Ameritrade updated their "Terms and Conditions" to include an arbitration clause that specified the following:
This Agreement contains a pre-arbitration clause. By signing an arbitration clause, the parties agree as follows:
• All parties to this Agreement give up their right to sue each other in court, including the right to jury trial, except as provided by the rules of the arbitration forum in which a claim is filed.
. . .
I agree that any controversy between you and your affiliates, any of their respective officers, directors employees or agents and me . . . arising out of or relating to this Agreement, our relationship, any services provided by you, or the use of the Services, and whether arising before or after the date of this Agreement shall be arbitrated[.]
Through his Ameritrade account, plaintiff owned shares of stock in Espirato Santo Fini Hldg (ESFYY). On 25 May 2006, ESFYY was delisted, or terminated, and no longer traded. Subsequently, several telephone calls were made between plaintiff and Ameritrade. In a letter addressed to plaintiff, Ameritrade informed plaintiff that the conversion terms of his shares in ESFYY were explained in an August 2006 telephone conversation. In March 2007, Ameritrade contended that plaintiff opted to have the shares removed from his account as a worthless security and that a confirmation of that trade was sent to plaintiff.
In October 2007, the shares were sold by American Depository Receipt and the proceeds were allocated to shareholders. It was not until April 2008 that plaintiff contacted Ameritrade inquiring about the sale of the shares. In August 2008, plaintiff filed a complaint against T.D. Ameritrade, Brian Fehr, and Donna Givner (collectively defendants) alleging conversion, embezzlement, breach of fiduciary duty, and a violation of N.C. Gen. Stat. § 78A-56(b) for removal of the ESFFY shares. Defendants filed a motion to compel arbitration which was granted by the trial court in a January 2009 order. In March 2010, an arbitration hearing was held before the Financial Industry Regulatory Authority, Inc. (R 94) The arbitration panel issued an award providing the following:
a. Denial of all Plaintiff's claims; b. Recommendation of expungement of "all reference to the above captioned arbitration from Respondent Fehr's and respondent Givner's registration records maintained by the CRD [Central Registration Depository], with the understanding that . . . Fehr and Givner must obtain confirmation from a court of competent jurisdiction before the CRD will execute the expungement directive."
In a July 2010 order and judgment, the trial court denied plaintiff's motion to vacate and granted defendants' motion to confirm the arbitration award. From this order, plaintiff appeals.
Plaintiff's brief contains numerous violations of the North Carolina Rules of Appellate Procedure. "It is well settled that the Rules of Appellate Procedure are mandatory and not directory. Thus, compliance with the Rules is required." Capps v. NW Sign Indus. of N.C., Inc., 186 N.C. App. 616, 618, 652 S.E.2d 372, 375 (2007) (citation omitted). "[V]iolation of the mandatory rules will subject an appeal to dismissal." Id. at 619, 652 S.E.2d at 375. However, "noncompliance with the appellate rules does not, ipso facto, mandate dismissal of an appeal." Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008). "[A] party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal." Id. at 198, 657 S.E.2d at 365. Specifically,
[n]oncompliance with the rules falls along a continuum, and the sanction imposed should reflect the gravity of the violation. . . . that only in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate. . . . In most situations when a party substantially or grossly violates nonjurisdictional requirements of the rules, the appellate courts should impose a sanction other than dismissal and review the merits of the appeal.
Id. at 200, 657 S.E.2d at 366 (internal citations omitted).
First, we must:
determine whether the noncompliance is substantial or gross under Rules 25 and 34. If [we] so [conclude], [we] should then determine which, if any, sanction under Rule 34(b) should be imposed. Finally, if [we] [conclude] that dismissal is the appropriate sanction, [we] may then consider whether the circumstances of the case justify invoking Rule 2 to reach the merits of the appeal. In evaluating whether appellate rules violations are "substantial" or "gross" we may consider "whether and to what extent the noncompliance impairs [our] task of review and whether and to what extent review on the merits would frustrate the adversarial process."
Tabor v. Kaufman, 196 N.C. App. 745, 747, 675 S.E.2d 701, 702-03 (2009) (internal citations omitted). "The court may also consider the number of rules violated[.]" Dogwood, 362 N.C. at 200, 657 S.E.2d at 367.
In the case before us, we are unable to undertake a meaningful review of this appeal because plaintiff: (1) has failed to define clearly the issues presented, making numerous typos in the statement of the issue as well as throughout the body of his argument, in violation of N.C. R. App. P. 28(a); (2) does not state the grounds for appellate review, neglecting to include a citation of the statute(s) permitting appellate review, in violation of N.C. R. App. P. 28(b)(4); (3) merely lists numbered paragraphs describing incomplete facts as opposed to a full and complete statement of the facts, as required by N.C. R. App. P. 28(b)(5), making it impossible to understand the issues presented for review and fails to cite to references in the record on appeal or exhibits for several statements of fact, in violation of N.C. R. App. P. 28(b)(5); (4) fails to include, in the body of his argument, a statement of applicable standard(s) of review for either of the issues presented and fails to include citations of authorities upon which he relies in his assertions, violating N.C. R. App. P. 28(b)(6). See Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316 (1999) (dismissing appeal where appellant failed to comply with N.C. R. App. P. 9(a)(1)(c), 9(a)(1)(k), 9(b)(3), 10(c)(1), 12(a), and 28(b)(5)); Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999) (affirming a judgment that dismissed defendant's appeal based on failure to comply with N.C. R. App. P. 26(g) and 28(b)); Selwyn Vill. Homeowners Ass'n v. Cline Co., 186 N.C. App. 645, 651 S.E.2d 909 (2007) (dismissing defendant's appeal for numerous violations of the North Carolina Rules of Appellate Procedure, including N.C. R. App. P. 28(b)(6) and 26(g), and for failure to amend or correct its admitted violations); Capps, 186 N.C. App. at 622, 652 S.E.2d at 378 (dismissing defendant's brief for failure to follow N.C. R. App. P. 10(c)(1) and 28(b)(6) and declining to invoke Rule 2).
"The function of all briefs . . . is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon." N.C. R. App. P. 28(a) (2009). However, after reviewing plaintiff's brief, we are unable to determine clearly the issues on appeal. His substantial violations impair our ability to review and "frustrate the adversarial process." Tabor, 196 N.C. App. at 747, 675 S.E.2d at 703. Therefore, we dismiss plaintiff's appeal because plaintiff's brief "grossly violated appellate court rules" and because the violations so significantly impair our ability to review the appeal that dismissal is the most appropriate sanction. N.C. R. App. P. 34(a)(3) and 34(b)(1) (2011). Furthermore, the "circumstances of the case [do not] justify invoking Rule 2 to reach the merits of the appeal." Tabor, 196 N.C. App. at 747, 675 S.E.2d at 702-03.
Dismissed.
Judges ELMORE and GEER concur.
Report per rule 30(e).