{ "id": 8159500, "name": "SELWYN VILLAGE HOMEOWNERS ASSOCIATION, Plaintiff v. CLINE & COMPANY, INC., Defendant", "name_abbreviation": "Selwyn Village Homeowners Ass'n v. Cline & Co.", "decision_date": "2007-11-06", "docket_number": "No. COA07-116", "first_page": "645", "last_page": "650", "citations": [ { "type": "official", "cite": "186 N.C. App. 645" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "644 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638295 ], "weight": 13, "year": 2007, "pin_cites": [ { "page": "202", "parenthetical": "internal citations and quotations omitted" }, { "page": "202" }, { "page": "203", "parenthetical": "internal citations and quotations omitted" }, { "page": "311" }, { "page": "202" }, { "page": "205" }, { "page": "315-16" }, { "page": "205", "parenthetical": "citations omitted" }, { "page": "316" }, { "page": "204-05" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0201-01" ] }, { "cite": "321 S.E.2d 836", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "837" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 318", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4752529 ], "year": 1984, "pin_cites": [ { "page": "320" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0318-01" ] }, { "cite": "535 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685004 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0668-01" ] }, { "cite": "468 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "273" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916022 ], "year": 1996, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0143-01" ] }, { "cite": "177 S.E. 184", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1934, "pin_cites": [ { "page": "187" } ], "opinion_index": 0 }, { "cite": "207 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625752 ], "year": 1934, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0323-01" ] }, { "cite": "79 S.E. 302", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 4, "year": 1913, "pin_cites": [ { "page": "302", "parenthetical": "\"The motion of the appellee to dismiss the appeal for failure to print the record and briefs in accordance with the rules of this Court is allowed.\"" }, { "page": "302" } ], "opinion_index": 0 }, { "cite": "164 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657757 ], "weight": 3, "year": 1913, "pin_cites": [ { "page": "356" }, { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc/164/0356-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)" }, { "page": "360" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "511 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1999, "pin_cites": [ { "page": "299" }, { "page": "313" }, { "page": "299" }, { "page": "402" } ], "opinion_index": 0 }, { "cite": "350 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131998 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "65" }, { "page": "66" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0064-01" ] }, { "cite": "156 S.E. 126", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "127", "parenthetical": "emphasis supplied" } ], "opinion_index": 0 }, { "cite": "199 N.C. 788", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615941 ], "year": 1930, "pin_cites": [ { "page": "789-90", "parenthetical": "emphasis supplied" } ], "opinion_index": 0, "case_paths": [ "/nc/199/0788-01" ] }, { "cite": "9 S.E. 488", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1889, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "102 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650019 ], "year": 1889, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/102/0487-01" ] }, { "cite": "3 S.E. 744", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1887, "opinion_index": 0 }, { "cite": "98 N.C. 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273500 ], "year": 1887, "opinion_index": 0, "case_paths": [ "/nc/98/0116-01" ] }, { "cite": "93 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272769 ], "year": 1885, "opinion_index": 0, "case_paths": [ "/nc/93/0105-01" ] }, { "cite": "361 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3746530 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "311", "parenthetical": "internal citations and quotations omitted" }, { "page": "311" }, { "page": "315" }, { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0309-01" ] } ], "analysis": { "cardinality": 652, "char_count": 13121, "ocr_confidence": 0.747, "pagerank": { "raw": 9.562862396181368e-08, "percentile": 0.5254470434376676 }, "sha256": "b7beaf357087b36e517d2537f80938eade0e7088ada4e6d0c0c6ac36cec3c73d", "simhash": "1:8411d6c879432cf8", "word_count": 2085 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ELMORE concur." ], "parties": [ "SELWYN VILLAGE HOMEOWNERS ASSOCIATION, Plaintiff v. CLINE & COMPANY, INC., Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nCline & Company, Inc. (\u201cdefendant\u201d) appeals from order entered enforcing a settlement agreement with Selwyn Village Homeowners Association (\u201cplaintiff\u2019) and from judgment entered awarding plaintiff $26,000.00. We dismiss defendant\u2019s appeal.\nI. Background\nIn June 2003, plaintiff\u2019s condominium units were flooded during a rain storm. During this time, defendant was responsible for managing plaintiffs homeowners association. Edwards, Church & Muse, Inc. (\u201cECM\u201d) provided hazard insurance to plaintiff. Plaintiff made a timely claim, together with a proof of loss under the insurance policy obtained by defendant and EMC for the association. Plaintiff subsequently discovered the property was grossly underinsured. Plaintiff brought an action against defendant and ECM alleging breach of contract and negligence.\nOn 26 April 2006, during the third day of trial, the parties settled the case. The settlement agreement provided defendant shall pay $26,000.00 to plaintiff in installments and the terms of the settlement shall include a confidentiality and non-disparagement agreement. The confidentiality and non-disparagement provisions were to be \u201cworked out\u201d by the parties in a mutually agreeable consent order.\nOn 25 May 2006, while negotiations were underway concerning the wording of the consent order, plaintiffs counsel was asked by plaintiff\u2019s board of directors to explain the settlement terms to members of its homeowners association. Defendant discovered this disclosure and refused to finalize the settlement documents or to make payment to plaintiff. Defendant argued the disclosure by plaintiffs counsel to the members of plaintiffs homeowners association violated the confidentiality and non-disparagement agreement and rendered the settlement void.\nOn 12 July 2006, plaintiff filed a notice of voluntary dismissal with prejudice against ECM regarding this action. On 19 July 2006, plaintiff moved to enforce the settlement agreement. The trial court granted plaintiffs motion. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) concluding plaintiff did not breach the terms of the settlement agreement; (2) finding members of plaintiffs homeowners association were clients of plaintiffs counsel and were entitled to receive the settlement information; (3) concluding plaintiffs counsel did not intend his report to disclose information other than what related to the settlement agreement; (4) finding that Kelly Ann Cline \u201csurreptitiously\u201d recorded communications between plaintiffs counsel and plaintiffs members; (5) concluding the disclosures made by plaintiffs counsel were not damaging to defendant; and (6) entering judgment against defendant.\nIII. Motion to Dismiss for Appellate Rules Violations\nOn 18 May 2007, plaintiff moved to dismiss defendant\u2019s appeal for numerous appellate rule violations. Defendant has 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 neither new nor has 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. \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)).\n1. Appellate Rule 28fbY6)\nPlaintiff appropriately moved for and argues that defendant\u2019s appeal should be dismissed for failure to comply with Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure. We agree.\nIn the argument section of defendant\u2019s brief, defendant states the questions presented and references the assignments of errors pertinent to the question. Defendant failed to identify the pages at which the assignments of error appear in the record following the questions presented.\nAppellate Rule 28(b)(6) provides, in relevant part, that an appellate brief shall contain:\nAn argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated. 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.\nN.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)). Defendant\u2019s failure to identify any assignment of error by the page where it appears in the record following the question presented violates Appellate Rule 28(b)(6) and subjects its appeal to dismissal.\n2. Appellate Rule 26(g)\nPlaintiff also argues defendant\u2019s appeal should be dismissed for failure to comply with Rule 26(g) of the North Carolina Rules of Appellate Procedure. We agree.\nAppellate Rule 26(g)(1) provides, in relevant part, \u201c[t]he format of all papers presented for filing shall follow the additional instructions found in the Appendixes to these Appellate Rules.\u201d N.C.R. App. P. 26(g)(1) (2007) (emphasis supplied). Appendix B states, \u201c[t]he index should be indexed approximately 3/4\u201d from each margin, providing a five inch line.\u201d N.C.R. App. P. apps. b (2007). \u201c[C]aptions, headings, and long quotes\u201d should be single-spaced. Id. Appendix E states, \u201c[t]he Appendix should include a table of contents, showing the pertinent contents of the appendix, the transcript or appendix page reference and a reference back to the page of the brief citing the appendix.\u201d N.C.R. App. P. apps. e (2007).\nIn Lewis v. Craven Reg\u2019l Medical Ctr., this Court stated, \u201c[b]ecause defendants have not complied with Rule 26, we could elect not to consider their brief...\u201d 122 N.C. App. 143, 147, 468 S.E.2d 269, 273 (1996), aff\u2019d, 352 N.C. 668, 535 S.E.2d 33 (2000); see Bradshaw, 164 N.C. at 356, 79 S.E. at 302 (\u201cThe motion of the appellee to dismiss the appeal for failure to print the record and briefs in accordance with the rules of this Court is allowed.\u201d). Defendant\u2019s brief violates Appellate Rule 26(g)(1) by containing: (1) an improper index margin; (2) double-spaced captions and headings; and (3) no appendix page reference. Defendant acknowledged its violations of these rules and has made no attempt to correct, amend, or substitute its brief. Defendant\u2019s failure to comply with Appellate Rule 26(g)(1) subjects its appeal to dismissal. Id.\nB. Discretionary Invocation of Appellate Rule 2\nIn light of our Supreme Court\u2019s decision in Hart, we must determine whether to invoke and apply Rule 2 despite defendant\u2019s appellate rules violations and review the merits of its appeal. 361 N.C. 309, 644 S.E.2d 201. Under these facts, we decline to do so.\nRule 2 of the North Carolina Rules of Appellate Procedure provides:\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). Our 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 North Carolina 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 (citations omitted) (emphasis supplied). 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. Appellate Rule 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)).\nNothing 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). In the exercise our discretion, we decline to ignore defendant\u2019s uncorrected rules violations and to invoke Appellate Rule 2.\nIV. Conclusion\nDefendant committed numerous violations of the North Carolina Rules of Appellate Procedure. Plaintiff has moved to dismiss defendant\u2019s appeal. After service of plaintiff\u2019s motion, defendant failed to amend or correct its admitted violations and deficiencies described above.\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 [they] become meaningless.\u201d Id. at 402, 610 S.E.2d at 361 (citing Stansberry, 164 N.C. at 356, 79 S.E. at 302). In the exercise of our discretionary authority, we decline to invoke Appellate Rule 2. Hart, 361 N.C. at 315, 644 S.E.2d at 204-05. Defendant\u2019s appeal is dismissed.\nDismissed.\nJudges McGEE and ELMORE concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "DeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for plaintiff-appellee.", "Clontz & Clontz, PLLC, by Ralph C. Clontz, III, for defendant-appellant." ], "corrections": "", "head_matter": "SELWYN VILLAGE HOMEOWNERS ASSOCIATION, Plaintiff v. CLINE & COMPANY, INC., Defendant\nNo. COA07-116\n(Filed 6 November 2007)\nAppeal and Error\u2014 assignments of error \u2014 record page number omitted \u2014 format incorrect \u2014 Rule 2 not invoked\nDefendant\u2019s appeal was dismissed for appellate rules violations where defendant did not identify any assignment of error by the page where it appears in the record, used an improper index margin, double-spaced captions and headings, and used no appendix page reference, in violation of Appellate Rules 28(b)(6) and 26(g). Defendant did not amend or correct its violations and deficiencies. Appellate Rule 2 was not invoked to consider the appeal because nothing in the record or briefs demonstrated exceptional circumstances to suspend or vary the rules.\nAppeal by defendant from order and judgment entered 20 September 2006 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 October 2007.\nDeVore, Acton & Stafford, PA, by Fred W. DeVore, III, for plaintiff-appellee.\nClontz & Clontz, PLLC, by Ralph C. Clontz, III, for defendant-appellant." }, "file_name": "0645-01", "first_page_order": 675, "last_page_order": 680 }