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  "name": "ALAN CAPPS, Plaintiff v. NW SIGN INDUSTRIES OF NORTH CAROLINA, INC., a North Carolina Corporation, RONALD BRODIE and CHRIS REEDEL, Defendants",
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    "judges": [
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    "parties": [
      "ALAN CAPPS, Plaintiff v. NW SIGN INDUSTRIES OF NORTH CAROLINA, INC., a North Carolina Corporation, RONALD BRODIE and CHRIS REEDEL, Defendants"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nNW Sign Industries of North Carolina, Inc., a North Carolina Corporation, (\u201cNW Sign of N.C.\u201d), Ronald Brodie, and Chris Reedel (collectively, \u201cdefendants\u201d) appeal from an order entered denying their motion to dismiss. We dismiss defendants\u2019 appeal.\nI. Background\nRonald Brodie is the President and CEO of NW Sign Industries, Inc., a New Jersey Corporation (\u201cNW Sign of N.J.\u201d) and Chris Reedel is the Vice President of NW Sign of N.J. and the General Manager of NW Sign of N.C. This dispute arose out of an employment contract between Alan Capps (\u201cplaintiff\u2019) and NW Sign of N.J. Plaintiff was employed as a salesperson by NW Sign of N.J. from December 2000 until November 2002. Plaintiff began working in the State of New Jersey and in January 2001, worked for NW Sign of N.C., at which time he was added to the NW Sign of N.C. payroll. Plaintiff alleges NW Sign of N.C. terminated his employment in November 2002 in order to avoid paying him a draw against his 9.09 percent commission of his sales.\nOn 9 July 2003, plaintiff filed a complaint asserting violations of the North Carolina Wage and Hour Act, wrongful discharge, and breach of contract. Plaintiff amended his complaint on 15 October 2003 to include a claim for punitive damages. On 19 November 2003, defendants filed their answer, motion for judgment on the pleadings, motion to dismiss, and counterclaims.\nOn 17 February 2004, the trial court entered an order denying defendants\u2019 motion for judgment on the pleadings and motion to dismiss. Defendants appealed. A divided panel of this Court dismissed defendants\u2019 appeal as interlocutory. See Capps v. NW Sign Indus. of N.C., Inc., 171 N.C. App. 409, 614 S.E.2d 552 (2005), vacated and remanded, 360 N.C. 391, 627 S.E.2d 614 (2006). Defendants appealed. Our Supreme Court vacated and remanded this Court\u2019s order dismissing defendants\u2019 appeal with instructions for this Court to further remand to the trial court for \u201cfindings of fact sufficient for appellate review of the jurisdictional issue.\u201d Capps, 360 N.C. at 392, 627 S.E.2d at 614.\nOn remand, the trial court entered findings of fact and conclusions of law denying defendants\u2019 motion for judgment on the pleadings and motion to dismiss. Defendants appeal.\nII. Issue\nDefendants argue the trial court erred by failing to find plaintiff\u2019s original employment contract with NW Sign of N.J. is enforceable.\nIII. Motion to Dismiss for Appellate Rules Violations\nOn 21 June 2007, plaintiff moved to dismiss defendants\u2019 appeal for numerous appellate rules violations. Defendants failed to amend or correct the errors raised in plaintiff\u2019s motion to dismiss.\nA. Appellate Rules Violations\n\u201cIt is well settled that the Rules of Appellate Procedure are mandatory and not directory. Thus, compliance with the Rules is required.\u201d State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (internal citations and quotations omitted).\nOur Supreme Court\u2019s interpretation and application of the Appellate Rules is not new nor has it changed in the past 120 years. In 1889, in the case of Walker v. Scott, our Supreme Court stated:\nThe impression seems to prevail, to some extent, that the Rules of Practice prescribed by this Court are merely directory \u2014 that they may be ignored, disregarded and suspended almost as of course. This is a serious mistake. The Court has ample authority to make them. (The Const., Art. IV, sec. 12; The Code, sec. 961; Rencher v. Anderson, 93 N.C. 105 [(1885)]; Barnes v. Easton, 98 N.C. 116, 3 S.E. 744 [(1887)].) They are deemed essential to the protection of the rights of litigants and the due administration of justice. They have force, and the Court will certainly see that they have effect and are duly observed, whenever they properly apply.\n102 N.C. 487, 490, 9 S.E. 488, 489 (1889).\nNearly eighty years ago, our Supreme Court also stated:\nWe have held in a number of cases that the rules of this Court, governing appeals, are mandatory and not directory. They may not be disregarded or set at naught (1) by act of the Legislature, (2) by order of the judge of the Superior Court, (3) by consent of litigants or counsel. The Court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly.\nPruitt v. Wood, 199 N.C. 788, 789-90, 156 S.E. 126, 127 (1930) (emphasis supplied).\n\u201c \u2018[Violation of the mandatory rules will subject an appeal to dismissal.\u2019 \u201d Hart, 361 N.C. at 311, 644 S.E.2d at 202 (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). \u201c[W]hen [our Supreme] Court said an appeal is subject to dismissal for rules violations, it did not mean that an appeal shall be dismissed for any violation. Rather, subject to means that dismissal is one possible sanction.\u201d Id. at 313, 644 S.E.2d at 203 (internal citations and quotations omitted). Some sanction, other than dismissal, may be appropriate, pursuant to Rule 25(b) or Rule 34 of the North Carolina Rules of Appellate Procedure. Id. at 311, 644 S.E.2d at 202.\n\u201c[T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)). \u201cIt is therefore necessary to have rules of procedure and to adhere to them, and if we relax them in favor of one, we might as well abolish them.\u201d Bradshaw, 164 N.C. at 356, 79 S.E. at 302. In our discretion, we review to determine whether some lesser sanction is appropriate in this appeal.\n1. Appellate Rule lOfcYD\nPlaintiff appropriately moved for and argues that defendants\u2019 appeal should be dismissed and asserts defendants\u2019 brief fails to comply with Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure. We agree.\nThe record on appeal contains thirty-four assignments of error made by defendants. Each of these thirty-four assignments of error reference only to the first page of multi-page documents.\nRule 10(c)(1) of the North Carolina Rules of Appellate Procedure states that \u201c[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.\u201d N.C.R. App. P. 10(c)(1) (2007) (Emphasis supplied).\nBroad, vague, and unspecific assignments of error are insufficient to satisfy Rule 10. See In re Appeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002) (\u201cAssignments of error [that are] . . . broad, vague, and unspecific ... do not comply with the North Carolina Rules of Appellate Procedure].]\u201d) Defendants\u2019 failure to include clear and specific record references in their assignments of error violates Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure and subjects their appeal to dismissal.\n2, Appellate Rule 28(b)(6)\nPlaintiff also argues defendants\u2019 appeal should be dismissed and asserts defendants\u2019 brief fails to comply with Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. We agree.\nIn the argument section of defendants\u2019 brief, defendants set forth five questions presented. Following each of defendants\u2019 five questions presented, defendants cite all thirty-four of their assignments of error.\nRule 28(b)(6) of the North Carolina Rules of Appellate Procedure states that \u201c[i]immediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal.\u201d N.C.R. App. P. 28(b)(6) (2007) (Emphasis supplied).\n\u201cThis Court has noted that when the appellant\u2019s brief does not comply with the rules by properly setting forth exceptions and assignments of error with reference to the transcript and authorities relied on under each assignment, it is difficult if not impossible to properly determine the appeal.\u201d Steingress, 350 N.C. at 66, 511 S.E.2d at 299 (citing State v. Newton, 207 N.C. 323, 329, 177 S.E. 184, 187 (1934)). Defendants\u2019 failure to reference the assignments of error pertinent to their appeal violates Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure and subjects their appeal to dismissal. In our discretion, defendants\u2019 Appellate Rules violations are sufficiently egregious to warrant dismissal.\nB. Discretionary Invocation of Appellate Rule 2\nIn light of our Supreme Court\u2019s decision in State v. Hart, we must determine, in our discretion, whether to invoke and apply Rule 2, despite defendants\u2019 appellate rules violations, and review the merits of its appeal. 361 N.C. 309, 644 S.E.2d 201; see State v. Patterson, 185 N.C. App. 67, 648 S.E.2d 250 (2007); Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 183 N.C. App. 389, 645 S.E.2d 212 (2007). Under these facts, and in our discretion, we decline to do so.\nRule 2 of the North Carolina Rules of Appellate procedure states:\nTo 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 prohibited 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.\nN.C.R. App. P. 2 (2007).\nOur Supreme Court has stated, Appellate Rule 2 \u201cmust be applied cautiously.\u201d Hart, 361 N.C. at 315, 644 S.E.2d at 205. \u201cRule 2 relates to the residual power of [the] appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest or to prevent injustice which appears manifest to the court and only in such instances.\u201d Id. at 315-16, 644 S.E.2d at 205 (emphasis supplied) (citations omitted). The decision whether to invoke Appellate Rule 2 is discretionary and is to be limited to \u201crare\u201d cases in which a fundamental purpose of the appellate rules is at stake. Id.\nRule 2 has most consistently been invoked to prevent manifest injustice in criminal cases in which substantial rights of a defendant are affected. Id. at 316, 644 S.E.2d at 205 (citing State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837 (1984)). Nothing in the record or briefs demonstrates \u201cexceptional circumstances\u201d to suspend or vary the rules in order \u201cto prevent manifest injustice to a party, or to expedite decision in the public interest.\u201d Id. (citation omitted). The dissenting opinion agrees that defendant violated the appellate rules but does not analyze why this appeal presents \u201cexceptional circumstances,\u201d \u201csignificant issues of importance in the public interest,\u201d or \u201caffects substantial rights of [the] appellant.\u201d Id. In the exercise of our discretion, we decline to ignore defendants\u2019 uncorrected rules violations, and to invoke Appellate Rule 2.\nIII. Conclusion\nDefendants\u2019 brief violated the North Carolina Rules of Appellate Procedure. Plaintiff has moved to dismiss defendants\u2019 appeal based on these violations. After service of plaintiff\u2019s motion, defendants have neither moved to amend the record to correct their assignments of error nor to amend or substitute their brief to correctly identify which assignments of error are pertinent to their questions presented.\n\u201c \u2018The North Carolina Rules of Appellate Procedure are mandatory and failure to follow these rules will subject an appeal to dismissal.\u2019 \u201d Viar, 359 N.C. at 401, 610 S.E.2d at 360 (quoting Steingress, 350 N.C. at 65, 511 S.E.2d at 299). \u201c[T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.\u201d Id. at 402, 610 S.E.2d at 361 (citing Bradshaw, 164 N.C. at 356, 79 S.E. at 302). In the exercise of our discretionary authority, we hold defendants\u2019 Appellate Rules violations do not warrant lesser sanctions and we decline to invoke Appellate Rule 2. Hart, 361 N.C. at 315, 644 S.E.2d at 204-05. Defendants\u2019 appeal is dismissed.\nDismissed.\nJudge ELMORE concurs.\nJudge McGEE dissents by separate opinion.",
        "type": "majority",
        "author": "TYSON, Judge."
      },
      {
        "text": "McGEE, Judge,\ndissenting.\nI do not believe this case should be dismissed and I therefore respectfully dissent from the majority opinion. I believe this case should be heard on its merits and I would impose on Defendants the printing costs of the appeal.\nThe majority correctly recognizes that our Supreme Court, in State v. Hart, 361 N.C. 309, 644 S.E.2d 201 (2007), recently clarified its precedent related to violations of the Rules of Appellate Procedure: \u201c[W]hen this Court said an appeal is \u2018subject to\u2019 dismissal for rules violations, it did not mean that an appeal shall be dismissed for any violation. Rather, \u2018subject to\u2019 means that dismissal is one possible sanction.\u201d Id. at 313, 644 S.E.2d at 203 (citation omitted), The majority also correctly recognizes that in Hart, our Supreme Court stated that some sanction, other than dismissal, may be appropriate for rules violations. Id. at 311, 644 S.E.2d at 202. However, I believe the majority incorrectly concludes that dismissal is the appropriate sanction for Defendants\u2019 violations of the Rules of Appellate Procedure.\nIn Peverall v. County of Alamance, 184 N.C. App. 88, 645 S.E.2d 416 (2007), and McKinley Bldg. Corp. v. Alvis, 183 N.C. App. 500, 645 S.E.2d 219 (2007), both decided after Hart, our Court declined to dismiss the cases based upon multiple violations of the Rules of Appellate Procedure. In Peverall, the appellant violated Rule 28(b)(6) by failing to provide the applicable standards of review and by failing to cite authority supporting the appropriate standards of review. Peverall, 184 N.C. App. at 91, 645 S.E.2d at 418. The appellant in Peverall also violated Rule 28(b)(6) and Rule 10(c)(1) because the appellant\u2019s assignments of error in the record and brief incorrectly referenced the record. Id. at 91-2, 645 S.E.2d at 418-19.\nIn McKinley, the appellants violated Rule 28(b)(4) by failing to cite a statute permitting appellate review. McKinley, 183 N.C. App. at 503-04, 645 S.E.2d at 221. The appellants violated Rule 28(b)(6) by failing to define their proposed standard of review and by failing to cite legal authority in support of that standard of review. Id. at 504, 645 S.E.2d at 221. The appellants in McKinley also violated Rule 28(b)(6) and Rule 10(c)(1) by failing to provide record and transcript references in support of their lone assignment of error. Id. at 504, 645 S.E.2d at 221.\nNevertheless, in both Peverall and McKinley, our Court determined that the violations of the Rules of Appellate Procedure were not sufficiently egregious to warrant dismissal. Peverall, 184 N.C. App. at 92, 645 S.E.2d at 419; McKinley, 183 N.C. App. at 504, 645 S.E.2d at 221. Rather, in both cases, our Court ordered the appellants to pay the printing costs of the appeal and, without engaging in a Rule 2 analysis, then addressed the merits. Peverall, 184 N.C. App. at 92-4, 645 S.E.2d at 419-22; McKinley, 183 N.C. App. at 504-08, 645 S.E.2d at 221-25.\nIn the present case, Defendants\u2019 rules violations are similar to the violations at issue in Peverall and McKinley. As in Peverall and McKinley, I do not believe that the violations in the present case warrant the dismissal of Defendants\u2019 appeal. I would impose monetary sanctions on Defendants in the form of the printing costs of the appeal. Having reached the merits, I would affirm the order of the trial court.",
        "type": "dissent",
        "author": "McGEE, Judge,"
      }
    ],
    "attorneys": [
      "James, McElroy & Diehl, P.A., by Richard B. Fennell and Jared E. Gardner, for 'plaintiff-appellee.",
      "Vandeventer Black LLP, by David P. Ferrell and Norman W. Shearin, Jr., for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "ALAN CAPPS, Plaintiff v. NW SIGN INDUSTRIES OF NORTH CAROLINA, INC., a North Carolina Corporation, RONALD BRODIE and CHRIS REEDEL, Defendants\nNo. COA07-99\n(Filed 6 November 2007)\n1. Appeal and Error\u2014 brief \u2014 assignments of error \u2014 record references not included\nDefendants\u2019 appeal was subject to dismissal where they failed to comply with Appellate Rule 10(c)(1) by not including clear and specific record references in their assignments of error.\n2. Appeal and Error\u2014 brief \u2014 questions presented \u2014 pertinent assignments of error required\nDefendants\u2019 appeal was subject to dismissal where, following each of the questions presented, they cited all thirty-four of their assignments of error. Appellate Rule 28(b)(6) requires a reference to assignments of error pertinent to the question.\n3. Appeal and Error\u2014 violations of requirements for brief\u2014 Rule 2 not invoked\nAppellate Rule 2 was not invoked where violations of the Appellate Rules were egregious. Nothing suggests exceptional circumstances for suspending or varying the rules in order to prevent manifest injustice or to expedite decision in the public interest.\nJudge McGEE dissenting.\nAppeal by defendants from order entered 20 October 2006 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2007.\nJames, McElroy & Diehl, P.A., by Richard B. Fennell and Jared E. Gardner, for 'plaintiff-appellee.\nVandeventer Black LLP, by David P. Ferrell and Norman W. Shearin, Jr., for defendants-appellants."
  },
  "file_name": "0616-01",
  "first_page_order": 646,
  "last_page_order": 654
}
