Opinion
No. COA12–11.
2012-07-3
Wrenn T. TREVARTHEN, Co–Administrator CTA of the Estate of Ida Hearn Treadwell, Plaintiff, v. Judith Ann TREADWELL, Co–Administrator C.T.A. of the Estate of Ida Hearn Treadwell, Defendant.
No brief filed for plaintiff appellee. Sands Anderson PC, by David McKenzie and Donna Ray Berkelhammer, for defendant appellee.
Appeal by Athena Mineo, non-party deponent, from order entered 19 August 2011 by Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 24 May 2012. No brief filed for plaintiff appellee. Sands Anderson PC, by David McKenzie and Donna Ray Berkelhammer, for defendant appellee.
Robert A. Mineo, for Athena Mineo, non-party deponent appellant.
McCULLOUGH, Judge.
Athena Mineo (“Mineo”) appeals from the trial court's order denying her request under Rule 45(c) of our Rules of Civil Procedure for reimbursement of certain costs and attorney's fees attendant with her deposition taken in the underlying case and for sanctions against Judith Ann Treadwell (“defendant”) and her attorneys. Defendant filed a motion to dismiss Mineo's appeal, denoting multiple violations of our Appellate Rules. Defendant has also detailed these appellate rules violations in her brief. We agree with defendant, and we dismiss her appeal.
First and foremost, Mineo's counsel's complete indifference to the mandates of Rule 28 is alarming to this Court. Rule 28(a) succinctly states that “[t]he function of all briefs required or permitted by [our appellate] rules 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) (2012). Specifically, Rule 28(b) delineates the required contents of an appellant's brief. Rule 28(b)(5) requires an appellant to include a “full and complete statement of the facts.” N.C.R.App. P. 28(b)(5) (2012). “This should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.” Id.
Upon review of Mineo's brief and the evidence in the record, it is clear that she and her counsel have included multiple factual assertions both in her statement of facts and throughout her argument that are unsupported by the record as provided. Many of these factual assertions concern statements made between the parties at two hearings regarding the taking of Mineo's deposition and at the deposition itself. Mineo and her counsel failed to include copies of the transcripts of both hearings held in this matter, as well as a copy of Mineo's deposition testimony, despite their presentation in the brief of such factual assertions and legal arguments that occurred “at the hearings.” Such failure to include the requisite transcripts with the record on appeal is, itself, a violation of Rule 7(a)(1), which provides that “[w]ithin fourteen days after filing the notice of appeal the appellant shall contract for the transcription of the proceedings or of such parts of the proceedings not already on file, as the appellant deems necessary, in accordance with these rules[.]” N.C.R.App. P. 7(a)(1) (2012).
Although Mineo and her counsel are correct that transcripts of hearings are not always necessary in order for this Court to conduct a meaningful appellate review, they neglect the fact that Mineo is asking this Court to review the proceedings below for error and that her counsel expressly devotes eleven pages of Mineo's brief countering arguments presented by defendant at the hearing below. We recognize that many of these same arguments were contained in defendant's brief to the trial court below and produced by Mineo's counsel in a Rule 9(b)(5) Supplement to the Record on Appeal. Nonetheless, without the trial court transcripts, we are unable to review the arguments presented to the trial court below and the reception of documentary evidence by the trial court. Indeed, Mineo's counsel asserts that many documents in the record and those contained in a sealed Rule 9(b)(5) Supplement to the Record were provided as evidence to the trial court, yet Mineo and her counsel have produced no documentation by way of an exhibit log or a transcript indicating that the trial court did, in fact, receive these documents for consideration in making its determination below.
Mineo's counsel asserts in a reply brief that he did not include the transcripts because no testimonial evidence was presented at the hearing, only the legal arguments of counsel, and he did not deem such transcripts necessary for review on appeal. Mineo's counsel further asserts that it was the responsibility of defendant “to acquire any of the testimonial transcript or narrative, not in the record, which Appellee believed to be necessary to determine this Appeal on its merits.” Despite this bold and incorrect assertion, it is the duty of Mineo and her counsel, as the appellant, to ensure this Court receives all material necessary to review the merits of her appeal. State v. Mitchell, 194 N.C.App. 705, 710, 671 S.E.2d 340, 344 (2009) (“It is the duty of the appellant to include in the record all materials necessary for this Court to consider the issues raised in his appeal.”). Here, the transcript of the hearings below, as well as that of Mineo's deposition, given that she and her counsel rely on this as evidence, would undoubtedly aid this Court in reviewing the merits of her appeal.
We further note that Mineo and her counsel must have been aware of the lack of factual support in her brief, contrary to Rule 28(b)(5), as they attempted to file with this Court an affidavit by Mineo's counsel attesting to certain factual circumstances that occurred at a hearing, as discussed in her brief. Defendant brought to this Court's attention that such affidavit had been executed by Mineo's counsel just days before it was filed with this Court, and therefore, the affidavit had never been presented to the trial court below. Thus, in an attempt to rectify the violation of Rule 28(b)(5), Mineo and her counsel attempted to include new evidence in the record before this Court, thereby violating the parameters of another appellate rule, Rule 9(b)(5).
More importantly, Rule 28(b)(6) requires an appellant's argument “to contain the contentions of the appellant with respect to each issue presented.” N.C. R.App. P. 28(b)(6). In addition, such argument “shall contain a concise statement of the applicable standard(s) of review for each issue, which shall appear either at the beginning of the discussion of each issue or under a separate heading placed before the beginning of the discussion of all the issues.” Id. Here, Mineo and her counsel have failed completely in their duty to provide us with a coherent argument for review. First, Mineo's counsel neglected to include the standard of review in the principal brief. In the reply brief addressing the numerous rules violations raised by defendant, Mineo's counsel not only included a statement of the standard of review applicable to Mineo's appeal, but he also attempted, boldly, to assert to this Court that he did include a standard of review in the principal brief. Mineo's counsel explains:
The Appellant presented the de novo standard of review to this Honorable Court under a numbered separate heading, placed before the beginning of the discussion of each question[ ] presented for Appellate review. Appellant requested the Court determine if the Trial Court properly applied [N.C. Gen.Stat. § 1A–1,]Rule 45(c)(1). This is a question of law and the legal standard of review for each issue is clearly the application of law....
Thus by requesting the Court review the Trial Court's application of [N.C. Gen.Stat. § 1A–1, Rule 45(c)(1) ] at the beginning of each argument in Appellant's brief, Appellant invoked and requested a de novo standard of review by this Court.
A statement of the question presented is not equivalent to a statement of the applicable standard of review. Mineo's counsel, “an experienced 30[-]year litigator,” undoubtedly recognizes this fact, as he included a proper statement of the standard of review in the reply brief, despite his attempts to defend his disregard of that rule in the first instance.
Second, Mineo's argument fails to adequately explain to this Court why the trial court's actions were erroneous. As a mere intellectual exercise, we have attempted to divine for Mineo an argument that she and her counsel did not make in her twenty-seven-page brief to this Court. Upon multiple readings of her “argument,” we can only come to the inference that she must contend the trial court erred in failing to find as a fact that defendant had committed a sanctionable violation of Rule 45(c)(1) on the facts of this case. However, even if we overlooked Mineo's gross rules violations and desired to reach the merits of such a contention, we could not, for this Court simply cannot assign error to the trial court's failure to make a finding of fact on the evidence where the appellant has neither raised that precise issue on appeal nor properly presented the evidence on which such an allegedly erroneous ruling relies. This Court has continuously and repeatedly noted that we will not assign error to findings of fact or conclusions of law that have not been challenged by the appellant on appeal. See, e.g., State v. Rawlinson, 198 N.C.App. 600, 610, 679 S.E.2d 878, 884 (2009); Town of Burnsville v. Boone, 231 N.C. 577, 579, 58 S.E.2d 351, 353 (1950). “ ‘It is not the role of the appellate courts ... to create an appeal for an appellant.’ “ First Charter Bank v. Am. Children's Home, 203 N.C.App. 574, 580, 692 S.E.2d 457, 463 (2010) (quoting Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005)).
Finally, Mineo's counsel's apparent disregard for clarity and accuracy undermines his professionalism and disrespects this Court's time. On reading Mineo's principal brief, we counted no fewer than 55 misspelled words, all of which a quick “spell check” would have highlighted and corrected. In the reply brief, Mineo's counsel states that his “[t]ypographical errors” were “not frequent or intentional and do not prevent the issues from clearly being presented to this Court.” While the typographical errors may not have been intentional, they were certainly frequent and are indicative of Mineo's counsel's efforts in failing to present this Court with a proper appeal.
Similarly, and more egregiously, Mineo's counsel repeatedly misspells the name of the trial court judge who issued the order from which Mineo is now appealing. We note that after defendant highlighted Mineo's multitude of errors, the reply brief remarkably corrects the trial judge's name and contains far fewer typographical errors, thus indicating to this Court that Mineo and her counsel simply cared not to review her principal brief for errors or for rules compliance prior to submitting it to this Court. We are also not persuaded by Mineo's counsel's attempts to rely on excusable clerical errors by trial court judges or the North Carolina Court System as a basis for excusing the inadequacy of Mineo's brief. Although Mineo's counsel states that he “regrets not finding all typographical errors prior to submitting the brief,” such plea is half-hearted at best, considering a gross majority of those errors could have been corrected simply by using a spell-check feature.
Like the multitude of misspellings, Mineo's counsel's lack of punctuation and adherence to simple grammatical rules regarding sentence structure significantly impair the readability of the arguments and cloud this Court's understanding of what exactly Mineo is attempting to appeal. Most notably, Mineo's counsel principally relies on a single case and a single statute in support of his tortured arguments, neither of which are cited correctly. Throughout the principal brief, Mineo's counsel misspells the name of the case on which he relies and fails to provide a single correctly formatted citation throughout his entire argument. Furthermore, he repeatedly references “NCGS 1A Rule 45(c)(1),” and on one instance, he references “NCGS A1 Rule 45(c)(1).” We note neither of these statutes, as cited, exists under our law. To be sure, we understand Mineo's counsel is referencing Rule 45(c)(1) of our Rules of Civil Procedure, which is properly cited to N.C. Gen.Stat. § 1A–1. Nonetheless, when an appellant relies entirely on a single statute and fails to cite that statute correctly no less than twelve times throughout her brief, we question either her counsel's ability as an attorney or her reliance on a statute that her counsel cannot seem to properly cite to this Court. In the reply brief, Mineo's counsel again consistently fails to cite the proper statute, and although Mineo and her counsel moved this Court to file a corrected table of authorities, which we allowed, upon review of such authorities, we noticed Mineo's counsel again failed to properly format a single citation.
On the subject of citations, Mineo's counsel appears to be completely unable to properly cite a single authority in the brief. Although Mineo's counsel provides 47 footnotes of citation, not a single one is in proper Bluebook format, and many provide no pinpoint citations. Perhaps Mineo's counsel would benefit from obtaining a copy of the Bluebook for reference in the future. Furthermore, Mineo's counsel repeatedly relies on non-binding authority as controlling on this Court, including cases from Ohio, Massachusetts, and federal courts, among others, as well as legal treatises and an unnamed “Legal Dictionary.” Mineo's counsel also attempts to cite a case with absolutely no precedential value to this Court, as it comes from a superior or district court in North Carolina, although he neglects to include such case in either his original Table of Authorities or his corrected Table of Authorities.
Mineo's entire principal brief, and the nature of her counsel's response in her reply brief, as well as her attempts to both include evidence not presented to the trial court and exclude material necessary for this Court's review, indicate her and her counsel's gross lack of concern for this Court's time and compliance with our Appellate Rules. We recognize that all of Mineo's transgressions here constitute violations of nonjurisdictional requirements. In Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008), our Supreme Court stressed that “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. Accordingly, our Supreme Court stated that this Court should not impose the harsh sanction of dismissal for nonjurisdictional rules violations unless such noncompliance rises to the level of a “substantial failure” to follow the rules or a “gross violation” of the requirements. Id. at 199, 657 S.E.2d at 366. “In the event of substantial or gross violations of the nonjurisdictional provisions of the appellate rules, however, the party or lawyer responsible for such representational deficiencies opens the door to the appellate court's need to consider the appropriate remedial measures.” Id.
In determining 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.
Id. at 200, 657 S.E.2d at 366–67.
Here, despite our Courts' preference for reaching appeals on the merits, Mineo's gross noncompliance with the rules, as denoted supra, completely frustrates this Court's review, as we are wholly unable to decipher her arguments given the lack of clarity in both the brief and the record on appeal filed in this case. Accordingly, we dismiss Mineo's appeal pursuant to our authority under Rule 25(b) of our Rules of Appellate Procedure for substantial noncompliance and gross violation of our Appellate Rules.
Dismissed. Judges CALABRIA and STROUD concur.
Report per Rule 30(e).