Opinion
No. COA08-922.
Filed 7 April 2009.
Surry County No. 07 CVS 356.
Appeal by Plaintiff from judgment entered 17 March 2008 by Judge Stuart Albright in Surry County Superior Court. Heard in the Court of Appeals 26 January 2009.
Franklin D. Smith and Timothy D. Welborn, for Plaintiff-Appellant. Stephen G. Teague and Mark A. Leach, for Defendants-Appellees.
Pam Gentry (Plaintiff) appeals from the trial court's order dismissing her wrongful death claim as to Defendants Clifford L. Baker, John C. Baker, and iSurity Insurance Services. We affirm.
Plaintiff is the Administratrix of the Estate of Joey Michael Quesenberry (Decedent). In March 2007, Plaintiff filed a wrongful death claim in Surry County, North Carolina against Big Creek Underground Utilities, Inc., iSurity Insurance Services, iSurity, Inc., Clifford L. Baker, and John C. Baker.
Plaintiff asserted that Decedent had a worker's compensation claim pending against Big Creek Underground and its carrier, iSurity Insurance Services. Clifford L. Baker is the President of iSurity, Inc. and John C. Baker is the Chief Executive Officer and Chief Financial Officer of iSurity, Inc. In February 2008, Defendants Baker, for themselves and on behalf of iSurity Insurance Services (Defendants), filed a Motion for Partial Summary Judgment. In their affidavits, Defendants Baker denied having any knowledge or involvement in the underlying worker's compensation claim prior to Decedent's death. They also contended that there was no entity known as "iSurity Insurance Services."
This motion was heard and granted before the Honorable Stuart Albright on 12 March 2008. Plaintiff filed Notice of Appeal in March 2008. In October 2008, Defendants filed a Motion to Dismiss the Appeal of the Plaintiff and a Motion for Sanctions.
Motion to Dismiss and Motion for Sanctions
Defendants filed a Motion to Dismiss the appeal of Plaintiff claiming that Plaintiff's brief failed to comply with the North Carolina Rules of Appellate Procedure. In their Motion to Dismiss, Defendants specified eight deficiencies, all of which govern the required content of appellate briefs. Defendants also filed a Motion for Sanctions arguing that Plaintiff's appeal was frivolous, not well-grounded in fact, and not warranted by existing law or a good-faith argument for the extension or modification of existing law. Defendants further argue that these acts constituted substantial and gross noncompliance with the Rules of Appellate Procedure, justifying a dismissal of Plaintiff's appeal based on Dogwood Dev. Mgmt. Co., LLC, v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008).
First, we must determine whether Plaintiff's failure to comply with the requirements of North Carolina Rules of Appellate Procedure Rule 28 were substantial or gross under Rules 25 and 34 of the North Carolina Rules of Appellate Procedure. Id. at 201, 657 S.E.2d at 367. North Carolina Rules of Appellate Procedure Rule 34 governs frivolous appeals and sanctions and states in pertinent part that:
(a) A court of the appellate division may, on its own initiative or motion of a party, impose a sanction against a party or attorney or both when the court determines that an appeal or any proceeding in an appeal was frivolous because of one or more of the following:
(1) the appeal was not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) the appeal was taken or continued for an improper purpose . . .; (3) a petition, motion, brief, record, or other paper filed in the appeal was so 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. N.C.R. App. P. 34(a). Rule 25 outlines the penalties for failure to comply with rules including dismissal of the appeal and sanctions against a party, attorney, or both.
Plaintiff violated the following appellate rules: (1) failure to include a statement of the grounds for appellate review in violation of Rule 28(b)(4); (2) failure to provide a statement of the facts that was non-argumentative in violation of Rule (28)(b)(5); (3) failure to provide references in the statement of facts to corresponding transcript pages in violation of Rule 28(b)(5); (4) failure to reference the assignments of error pertinent to the question presented in violation of Rule 28(b)(6); (5) failure to cite any case authority in her assignment of error concerning the trial court's failure to allow Plaintiff adequate time for discovery in violation of Rule 28(b)(6); (6) failure to state the applicable standard of review in violation of Rule 28(b)(6); (7) failure to comply with citation requirements in the Table of Cases and Authorities in violation of Rules 28(b)(1) and (6); and (8) failure to provide a short conclusion stating the precise relief sought in violation of Rule 28(b)(7).
The Supreme Court in Dogwood stated that the "`rules of procedure are necessary . . . in order to enable the courts properly to discharge their dut[y]' of resolving disputes." Dogwood, 362 N.C. at 193, 657 S.E.2d at 362 (quoting Pruitt v. Wood, 199 N.C. 788, 790, 156 S.E. 126, 127 (1930)) "Compliance with the rules, therefore, is mandatory." Id. at 194, 657 S.E.2d at 362. "But `[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 (1941)). Moreover, "noncompliance with the appellate rules does not, ipso facto, mandate dismissal of an appeal." Id.
The North Carolina Supreme Court held that violations of Rule 28, such as those committed by Plaintiff, do not automatically require dismissal of the appeal. Rather, the Court has found that:
the appellate court may not consider sanctions of any sort when a party's noncompliance with nonjurisdictional requirements of the rules does not rise to the level of a "substantial failure" or "gross violation." In such instances, the appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible.
Id. at 199, 657 S.E.2d at 366. The Court stressed that "only in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate." Id. at 200, 657 S.E.2d at 366. In determining "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," we find that Plaintiff's errors do not interfere with our understanding of the issues on appeal. Id. at 200, 657 S.E.2d at 366-67. We deny the motion to dismiss and the motion for sanctions, and the case will be heard on its merits.
Motion for Summary Judgment
Plaintiff argues that her attorneys were not given sufficient time to prepare a response to the Motion for Summary Judgment filed on 22 February 2008 or to Defendants' affidavits. Plaintiff further argues that the trial court committed reversible error by failing to allow Plaintiff adequate time to conduct discovery following the receipt of Defendants' Motion for Partial Summary Judgment and by granting the Motion. We disagree.
The Complaint was filed on 14 March 2007. On 22 February 2008, Defendants filed a Motion for Partial Summary Judgment. Defendants argued that iSurity Insurance Services was not a legal entity and that Defendants Baker had no involvement in the worker's compensation claim of the Decedent. The Motion was heard on 10 March 2008, seventeen days after it was filed, and the Order granting the Motion for Summary Judgment was filed on 17 March 2008.
During the hearing, Plaintiff's counsel explained that he wished to depose Defendants Baker. Therefore, they requested more time for discovery, in order to determine whether or not Defendants Baker had personal liability in the worker's compensation claim. However, Plaintiff's counsel acknowledged the absence of any pending discovery motions. Judge Albright then stated that, "you can't file discovery to thwart having a summary judgment being heard. If there was already pending discovery that predated the summary judgment motion, that might be a different story; but that's why I asked those questions." This hearing took place over a year following the filing of the Complaint. Plaintiff had yet to begin discovery even though jury trial was scheduled to begin approximately four months later. Rule 56(c) of the North Carolina Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. . 1A-1, Rule 56(c) (2007). When deciding a summary judgment motion:
a trial court must consider the evidence in the light most favorable to the non-moving party. If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. The moving party bears the burden of showing that no triable issue of fact exists. This burden can be met by proving: (1) that an essential element of the non-moving party's claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that the non-moving party cannot surmount an affirmative defense which would bar the claim.
Azar v. Presbyterian Hosp., ___ N.C. App. ___, 663 S.E.2d 450, 452 (2008).
The applicable standard of review is as follows:
On an appeal from a grant of summary judgment, this Court reviews the trial court's decision de novo. Thus, when viewing the evidence in the light most favorable to the non-movant, we must determine whether the trial court properly concluded that the moving party showed, through pleadings and affidavits, that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law.
Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002). The record indicates that the moving party, Defendants, filed affidavits from Defendants Baker on 22 February 2008. In Defendants Baker's affidavits, they asserted that there was no corporation, partnership, or legal entity denominated as iSurity Insurance Services. They also argued that they had no personal, direct or known involvement in the Decedent's worker's compensation claim. Defendants Baker contended that defendant Big Creek Underground Utilities, Inc. was in an ongoing bankruptcy proceeding and presented a copy of the Voluntary Petition as evidence. The trial court concluded that there were no genuine issues of material fact pertaining to Defendants Baker and to the Defendant denominated as iSurity Insurance Services and that they were entitled to judgment in their favor as a matter of law.
In Shroyer, this Court reasoned that the trial court did not err in granting defendant's summary judgment motion because there was "no evidence that plaintiffs sought any discovery prior to the defendants' motion for summary judgment[,] . . . no record of any objections by plaintiffs to the court proceeding with a hearing on defendants' motion[,]" and because "plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pre-trial discovery to take place." Shroyer, 154 N.C. App. at 169, 571 S.E.2d at 852. The same reasoning used by the Court in Shroyer should be applied to the present case. Here, Plaintiff admitted that there was no discovery pending at the time of the hearing, there was no record of any objections Plaintiff might have filed in relation to the hearing, and Plaintiff did not request a continuance for additional time. See N.C. Gen. Stat. § 1A-1, Rule 56(f)(2007). Notably, in Shroyer, the hearing for the Motion for Summary Judgment occurred approximately four months subsequent to the filing of the Complaint. In the present case, the hearing occurred over a year after the filing of the Complaint and yet no discovery had commenced.
We are not convinced by Plaintiff's argument that she did not have sufficient or adequate time to respond to the affidavits of the individual Defendants, and therefore required additional time to conduct discovery. Defendants met their burden of showing that there were no genuine issues of material fact, and Plaintiff, in turn, did not present any evidence to refute this. Plaintiff did not display any evidence that showed that "iSurity Insurance Services" was a valid legal entity, nor did she offer any evidence that Defendants Baker had any knowledge of or participation in the worker's compensation claim of Decedent.
For the foregoing reasons, we affirm the trial court's order
dismissing claims against Defendants Clifford L. Baker, John C. Baker, and iSurity Insurance Services.
Affirmed.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).