An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA07-116-2
NORTH CAROLINA COURT OF APPEALS
Filed:
4 November 2008
SELWYN VILLAGE HOMEOWNERS
ASSOCIATION,
Plaintiff,
v.
Mecklenburg County
No. 04 CVS 21480
CLINE & COMPANY, INC.,
Defendant.
Court of Appeals
Appeal
by
defendant
from
order
and
judgment
entered
20
September 2006 by Judge Linwood O. Foust in Mecklenburg County
Superior Court.
This case was originally heard in the Court of
Slip Opinion
Appeals 10 October 2007.
See Selwyn Village Homeowners Ass’n v.
Cline & Co., 186 N.C. App. 645, 651 S.E.2d 909 (2007).
Upon remand
by order from the North Carolina Supreme Court, filed 11 June 2008.
See Selwyn Village Homeowners Ass’n v. Cline & Co., 362 N.C. 362,
___ S.E.2d ___ (2008).
DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for
plaintiff-appellee.
Clontz & Clontz, P.L.L.C., by Ralph C. Clontz, III, for
defendant-appellant.
TYSON, Judge.
This
Court
initially
heard
Cline
&
Company,
Inc.’s
(“defendant”) appeal from order entered enforcing a settlement
agreement with Selwyn Village Homeowners Association (“plaintiff”)
-2and from judgment entered awarding plaintiff $26,000.00.
See
Selwyn Village Homeowners Ass’n, 186 N.C. App. at 645, 651 S.E.2d
at 909–10.
A unanimous panel of this Court dismissed defendant’s
appeal based upon plaintiff’s motion to dismiss defendant’s appeal,
which alleged violations of the North Carolina Rules of Appellate
Procedure.
See id. at 650, 651 S.E.2d at 912.
Defendant
review.
petitioned
our
Supreme
Court
for
discretionary
See Selwyn Village Homeowners Ass’n, 362 N.C. at 362, ___
S.E.2d at ___.
Our Supreme Court “remanded for reconsideration in
light of Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co.,
362 N.C. 191, 657 S.E.2d 361 (2008)[.]” Id.
Upon remand and after
further review, we affirm.
I.
Background
This Court previously outlined the background leading to this
appeal:
In June 2003, plaintiff’s condominium
units were flooded during a rain storm. During
this time, defendant was responsible for
managing plaintiff’s homeowners association.
Edwards, Church & Muse, Inc. (“ECM”) provided
hazard insurance to plaintiff. Plaintiff made
a timely claim, together with a proof of loss
under the insurance policy obtained by
defendant and ECM 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.
On 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
-3“worked out” by the parties in a mutually
agreeable consent order.
On 25 May 2006, while negotiations were
underway concerning the wording of the consent
order, plaintiff’s counsel was asked by
plaintiff’s 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
plaintiff’s
counsel
to
the
members
of
plaintiff’s homeowners association violated
the confidentiality and non-disparagement
agreement and rendered the settlement void.
On 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 plaintiff’s
motion. Defendant appeal[ed].
Selwyn Village Homeowners Ass’n, 186 N.C. App. at 645–646, 651
S.E.2d at 910.
On 18 May 2007, plaintiff moved to dismiss defendant’s appeal
based on violations of Appellate Rule 28 and with the formatting
set
forth
Procedure.
were:
in
Appendices
B
and
E
of
the
Rules
of
Appellate
The Appellate Rule violations alleged by plaintiff
(1) failure to “identify the pages of the record for any of
the nine questions presented[;]” (2) “the brief does not contain a
concise statement of the procedural history of the case[;]” (3)
“the index does not have the proper margins[;]” (4) “the issues
within the body of the document are not single spaced[;]” and (5)
“the index to the appendix is not formatted as found in Appendix E
. . . .”
Defendant responded and stated:
-4The unintended violation . . . of the Rules of
Appellate Procedure does not significantly
interfere with the ability of the Court to
discern which findings of fact are being
challenged by the assignment of error. Such
technical violations are not substantial or
egregious enough to warrant dismissal of the
appeal, and it would be manifestly unjust to
[d]efendant . . . for its appeal to be
dismissed rather than allowing it to [be]
heard on its merits.
Defendant never corrected its admitted violations of the Rules
of Appellate Procedure.
A unanimous panel of this Court granted
plaintiff’s motion to dismiss and dismissed defendant’s appeal
based up the violations enumerated above.
S.E.2d at 912.
See id. at 650, 651
Our Supreme Court “[a]llowed [defendant’s petition
for discretionary review] and remanded for reconsideration in light
of Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.
191, 657 S.E.2d 361 (2008)[.]” See Selwyn Village Homeowners Ass’n,
362 N.C. at 362, ___ S.E.2d at ___.
II.
Defendant’s Appellate Rules Violations
In Dogwood, our Supreme Court stated “that the occurrence of
default
under
the
appellate
rules
arises
primarily
from
existence of one or more of the following circumstances:
the
(1)
waiver occurring in the trial court; (2) defects in appellate
jurisdiction; and (3) violation of nonjurisdictional requirements.”
362
N.C.
at
194,
657
S.E.2d
at
363.
Here,
defendant’s
noncompliance falls within the third category.
“Based on the language of [Appellate] Rules 25 and 34, the
appellate court may not consider sanctions of any sort when a
party’s noncompliance with nonjurisdictional requirements of the
-5[appellate] rules does not rise to the level of a ‘substantial
failure’ or ‘gross violation.’”
Id. at 199, 657 S.E.2d at 366.
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. See [State v.] Hart, 361 N.C. [309,]
312, 644 S.E.2d [201,] 203 [(2007)] (noting
that dismissal may not be appropriate when a
party’s
noncompliance
does
not
“‘impede
comprehension of the issues on appeal or
frustrate the appellate process’” (citation
omitted)); Viar [v. N.C. Dep’t of Transp.],
359 N.C. [400,] 402, 610 S.E.2d [360,] 361
[(2005)] (discouraging the appellate courts
from reviewing the merits of an appeal when
doing so would leave the appellee “without
notice of the basis upon which [the] appellate
court might rule” (citation omitted)). The
court may also consider the number of rules
violated,
although
in
certain
instances
noncompliance with a discrete requirement of
the rules may constitute a default precluding
substantive review. See, e.g., N.C. R. App. P.
28(b)(6) (“Assignment of error not set out in
the appellant’s brief, or in support of which
no reason or argument is stated or authority
cited, will be taken as abandoned.”).
Id. at 200, 657 S.E.2d at 366–67.
Here, defendant’s appellate rules violations, while numerous,
do not “rise to the level of a ‘substantial failure’ or ‘gross
violation’” to warrant sanctions.
Id. at 199, 657 S.E.2d at 366.
We nonetheless admonish defendant’s counsel to review the Rules of
Appellate Procedure and be more diligent in any future appeals.
III.
Issues
-6Defendant
argues
the
trial
court
erred
when
it
granted
plaintiff’s motion to enforce the settlement agreement and entered
judgment against defendant.
IV.
Standard of Review
“The standard of review on appeal from a judgment entered
after a non-jury trial is whether there is competent evidence to
support the trial court’s findings of fact and whether the findings
support the conclusions of law and ensuing judgment.”
Cartin v.
Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (citation and
quotation omitted), disc. rev. denied, 356 N.C. 434, 572 S.E.2d 428
(2002).
The trial court’s conclusions of law are reviewable de
novo on appeal.
Humphries v. City of Jacksonville, 300 N.C. 186,
187, 265 S.E.2d 189, 190 (1980) (citations omitted).
V.
Motion to Enforce the Settlement Agreement
Defendant argues the trial court’s findings of fact numbered
2, 5, 7, and 10 in the Order Enforcing Settlement Agreement are not
supported by competent evidence. Defendant further argues that the
trial court’s conclusions of law are not supported by its findings
of fact.
We disagree.
Defendant only assigns error to findings of fact numbered 2,
5, 7, and 10 in the trial court’s Order Enforcing Settlment
Agreement. With regard to the remaining findings of fact, “[w]here
no exception is taken to a finding of fact by the trial court, the
finding is presumed to be supported by competent evidence and is
binding on appeal.”
Koufman v. Koufman, 330 N.C. 93, 97, 408
-7S.E.2d 729, 731 (1991) (citations omitted).
The trial court’s
remaining unchallenged findings of fact are binding on appeal. Id.
The trial court’s findings of fact numbered 2, 5, 7, and 10
state:
2.
The members of the Selwyn Village
Homeowners Association are the clients of
plaintiff’s counsel and counsel was asked
to represent the association by and
through its board of directors.
. . . .
5.
Unbeknownst to plaintiff’s counsel, the
daughter-in-law of the principal of the
defendant corporation, who as a member of
homeowner’s
association
through
her
ownership interest in a condominium at
Selwyn Village, surreptitiously tape
recorded the comments of counsel and then
supplied the tape to defendant’s counsel.
. . . .
7.
After reviewing the affidavit supplied by
Kelly Ann Cline, the association member
who secretly recorded the communication
between plaintiff’s counsel and his
clients, it does not appear that the
attorney’s report to the homeowners
association was intended to disclose
information other than the information
related to the settlement, about which
the members were entitled to know.
. . . .
10.
The
That
the
person
who
intentionally
recorded
the
communications
of
plaintiff’s
counsel,
was,
in
all
probability, already aware of what had
transpired in the court room and in
regards to the settlement, and may have
been recording the meeting because of her
knowledge of the case.
record
on
appeal
contains
competent
evidence
supports each of the trial court’s findings of fact:
which
(1) “[t]he
-8plaintiffs
in
this
action
are
the
individual
homeowners
of
condominium units, who, pursuant to their covenants, conditions and
restrictions, delegated the duty and responsibility for the repair
of exterior units and the acquisition of flood insurance to their
board of directors — . . . the named plaintiff in this action[;]”
(2) plaintiff’s counsel was neither aware of nor made aware of
Kelly Ann Cline’s relationship with defendant; (3) plaintiff’s
counsel was not aware that Kelly Ann Cline was tape recording the
homeowners’ association meeting; and (4) plaintiff’s counsel only
communicated the terms and rationale of the settlement agreement to
his clients.
After thorough review of the record on appeal, we hold that
competent
evidence
in
the
record
supports
findings of fact numbered 2, 5, 7, and 10.
the
trial
court’s
These findings of fact,
together with the remaining unchallenged findings of fact, support
the trial court’s conclusions of law.
The trial court properly
granted plaintiff’s motion to enforce the settlement agreement.
Cartin, 151 N.C. App. at 699, 567 S.E.2d at 176.
This assignment
of error is overruled.
VI.
Defendant
argues
Trial Court’s Judgment
the
trial
court
erred
when
it
entered
judgment against defendant based on the grant of plaintiff’s motion
to enforce the settlement agreement.
We disagree.
“It is well-settled in North Carolina that compromises and
settlements of controversies between parties are favored by our
courts.”
State ex rel. Howes v. Ormond Oil & Gas Co., 128 N.C.
-9App. 130, 136, 493 S.E.2d 793, 796 (1997) (citation omitted). “[A]
party may enforce a settlement agreement by filing a voluntary
dismissal of its original claim and then instituting another action
on the contract, or it may simply seek to enforce the settlement
agreement by petition or motion in the original action.”
Id. at
136, 493 S.E.2d at 797 (citations and quotation omitted) (emphasis
supplied).
The terms of the settlement agreement, as found by the trial
court in its Order Enforcing Settlement Agreement, included the
following clause:
Should defendant . . . fail and/or refuse to
make any timely payment, notice of default
shall be provided to Ralph Clontz, Jr. as
counsel for defendant . . . . In the event the
default is not cured within 5 days, the
plaintiff may apply to the Court and obtain a
judgment in the amount of $26,000, less any
payments made hereunder.
In its judgment entered 20 September 2006, the trial court
found that “defendant has not made any payments and has indicated
that it does not intend to make payments under the settlement
agreement and is now in default of that agreement.”
This finding
was not challenged by defendant on appeal and it is binding.
Koufman, 330 N.C. at 97, 408 S.E.2d 731.
Based on this finding and
the trial court’s grant of plaintiff’s motion to enforce the
settlement agreement, the trial court properly entered judgment
against defendant.
176.
Cartin, 151 N.C. App. at 699, 567 S.E.2d at
This assignment of error is overruled.
VII.
Conclusion
-10Competent evidence in the record on appeal supports the trial
court’s findings of fact.
The trial court’s findings of fact
support its conclusions of law.
The trial court properly granted
plaintiff’s motion to enforce the settlement agreement and entered
judgment in favor of plaintiff.
Id.
judgment are affirmed.
Affirmed.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
The trial court’s order and
