CAROLINA FOREST ASS'N, INC. v. White

Stroud, Judge,

dissenting.

Due to defendants’ numerous egregious violations of the North Carolina Rules of Appellate Procedure, I would grant plaintiff’s motion to dismiss this appeal. I therefore respectfully dissent.

The majority explains the convoluted procedural history of this case, defendants’ failure to appear at the trial of this matter and thus to preserve any objections for review, and the many violations of the Rules of Appellate Procedure in the record and in defendants’ brief. The deficiencies in the record on appeal are even acknowledged by defendants’ statement in the record that

[a]ppellants have not been able to work with the attorney for the appellee in the manner customary for litigants in cases where each side is represented by attorneys. Appellants must presume that appellee’s attorney is holding back with the expectation that appellants not trained in the law will not successfully negotiate the procedures that must be mastered. Consequently, this Record of Appeal is not a joint document where areas of agreement and areas of disagreement are well defined.

However, the record also shows no indication that the defendants sought judicial settlement of the record. In short, the majority and I are in agreement that defendants’ violations of the Rules of Appellate Procedure are numerous and egregious and that “ [defendants’ appeal satisfies Dogwood’s criteria for dismissal[.]”

*20 However, the majority then goes on to review several legal arguments which defendants might have raised in this appeal. The deficiencies and violations in the record and defendants’ brief are so numerous and severe that, in the majority’s well-meaning effort to review defendants’ appeal on the merits, it has actually created arguments for defendants, including arguments not addressed by either party’s brief. The North Carolina Supreme Court set forth the proper analysis for failure to comply with the appellate rules in Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191 , 657 S.E.2d 361 (2008).

The most egregious violations result in waiver of the appeal and these “arise [ ] out of a party’s failure to properly preserve an issue for appellate review.” Id. at 194-95 , 657 S.E.2d at 363 . “[A] party’s failure to properly preserve an issue for appellate review ordinarily justifies the appellate court’s refusal to consider the issue on appeal.” Id. at 195-96 , 657 S.E.2d at 364 (citations omitted).

Here, defendants failed to appear or have counsel appear on their behalf at trial, and thus they violated Rule 10(b)(1) which provides, “In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.]” N.C.R. App. P. 10(b)(1); see Dogwood Dev. & Mgmt. Co., LLC at 195 , 657 S.E.2d at 363 (citations, quotation marks, ellipses, and brackets omitted) (“The requirement expressed in Rule 10(b) that litigants raise an issue in the trial court before presenting it on appeal goes to the heart of the common law tradition and our adversary system. This Court has repeatedly emphasized that Rule 10(b) prevents unnecessary new trials caused by errors that the trial court could have corrected if brought to its attention at the proper time. Rule 10(b) thus plays an integral role in preserving the efficacy and integrity of the appellate process. We have stressed that Rule 10(b)(1) is not simply a technical rule of procedure but shelters the trial judge from an undue if not impossible burden.”). Furthermore, defendants failed to assign error to a single finding of fact or conclusion of law made by the trial court. Findings of fact to which no error is assigned are binding on appeal. Hartsell v. Hartsell, 189 N.C. App. 65, 68 , 657 S.E.2d 724, 726 (2008). Also, “[t]he appellant must assign error to each conclusion it believes is not supported by the evidence. Failure to do so constitutes an acceptance of the conclusion and a waiver of the right to challenge said conclusion as unsupported by the facts.” Orix Fin. Servs., Inc. v. Raspberry Logging, Inc., 190 N.C. *21 App. 657, 660 , 660 S.E.2d 609, 610-11 (2008) (citations omitted). Due to defendants’ failure to appear at trial and preserve any issues for appeal and failure to assign any error to the findings of fact or conclusions of law upon which the judgment is based, I conclude defendants have waived their right to appeal. See N.C.R. App. P. 10(a), (b)(1); Dogwood Dev. & Mgmt. Co., LLC at 194-96 , 657 S.E.2d at 363-64; Orix Financial at -, 660 S.E.2d at 610-11 ; Hartsell at 68 , 657 S.E.2d at 726.

Having determined that defendants’ have waived their right to appeal, the last inquiry is whether this Court should use Rule 2 to reach the merits of the case. See Dogwood Dev. Mgmt. Co., LLC at 196, 657 S.E.2d at 364; see also N.C.R. App. P. 2 (“To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.”) However, use of Rule 2 is proper only “when necessary to prevent manifest injustice to a party or to expedite decision in the public interest. Rule 2 ... must be invoked cautiously, and . . . [only] exceptional circumstances . . . allow the appellate courts to take this extraordinary step.” Dogwood Dev. & Mgmt. Co., LLC at 196 , 657 S.E.2d at 364 (citations and quotation marks omitted).

Although I appreciate the difficulties defendants may have had in representing themselves, the fact that defendants are pro se is not an “exceptional circumstance” which would justify use of Rule 2. Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125 , 519 S.E.2d 316, 317 (1999). (“[The Rules of Appellate Procedure] apply to everyone— whether acting pro se or being represented by all of the five largest law firms in the state.”) Furthermore, there is nothing in the record which would indicate that this case presents any “exceptional circumstance” for which Rule 2 should be invoked “to prevent manifest injustice or to expedite decision in the public interest.” Dogwood Dev. & Mgmt. Co., LLC at 196 , 657 S.E.2d at 364. “The Rules of Appellate Procedure are mandatory; failure to comply with these rules subjects an appeal to dismissal.” Bledsoe at 125 , 519 S.E.2d at 317 (citation omitted). I therefore respectfully dissent and would grant plaintiff’s motion to dismiss this appeal.