Opinion
No. COA10-535
Filed 1 March 2011 This case not for publication
Appeal by Plaintiff from an order entered 9 November 2009 by Judge Donald W. Stephens Wake County Superior Court. Heard in the Court of Appeals 16 November 2010.
Kenneth C. Johnson, Defendant-appellant, pro se. Yates, McLamb Weyher, L.L.P, by Sean T. Patrick and William T. Kesler, Jr. for Plaintiff-appellees Oak Health Care Investors of North Carolina, Inc., a North Carolina Corporation, d/b/a The Laurels of Forest Glenn, Laurel Health Care Company, Alan Finlayson, and Sandra Lynn Wood. Young, Moore Henderson, P.A., by Adam G. Tarsitano for Plaintiff-appellees Yates, McLamb Weyher, LLP, Barbara B. Weyher, Esq., Dan J. McLamb, Esq., Sean Timothy Patrick, Esq., and Christopher Mitchell West, Esq.
Wake County No. 05CVS3411, 08CVS3715, 09CVS6918.
Plaintiff, Kenneth C. Johnson, appeals from a trial court order denying various motions made in relation to legal actions arising from his employment relationship with Defendant. Because Plaintiff failed to properly preserve many of his arguments for appellate review, we dismiss the appeal and affirm.
Because this appeal arises from multiple actions involving many of the same parties, the "Plaintiff" or "Defendant" is not always the same in each action. For the purposes of this appeal, Kenneth C. Johnson will be identified as "Plaintiff." Oak Health Care Investors of North Carolina, Inc., A North Carolina Corporation d/b/a The Laurels of Forest Glenn Laurel Health Care Company will be referred to as "Defendant."
Plaintiff appeals from a trial court order addressing multiple civil suits that arose over the course of a three year period. The facts below outline the circumstances which led to the current action. Additional relevant facts will be included, as pertinent, throughout the remainder of the opinion. On 5 January 2005, Defendant Oak Healthcare Investors of North Carolina, Inc., d/b/a The Laurels of Forest Glenn (the "Laurels") hired Plaintiff as a licensed practical nurse at the Laurels' nursing facility. Afer several months, the Laurels terminated Plaintiff's employment. On 14 March 2005, Defendant filed a complaint against Plaintiff in Wake County Superior Court. Defendant alleged that following Plaintiff's termination, Plaintiff used flyers and a web page to disseminate the confidential medical information of several residents of the nursing facility. The Defendant's 2005 suit against Plaintiff was filed as "05-CVS-3411" in Wake County Superior Court.
On 14 March 2005, after reviewing a motion made by the Defendant, the trial court issued a temporary restraining order, prohibiting Plaintiff from publishing "all materials and information that may contain medical and/or health care information of any patient or client" of the Laurels' nursing facility. Shortly thereafter, the trial court issued a preliminary injunction, again prohibiting Plaintiff from publishing the confidential medical information of the nursing home residents. On 17 April 2006, Defendant moved for an entry of default against Plaintiff. The trial court entered a default judgment by order filed 30 August 2006. In its order the trial court found that "[t]he [Plaintiff's] Answer and Counterclaim and/or Amended Answer and Counterclaim were untimely and, further, were improper after the Order granting Plaintiffs' Motion for Entry of Default had been granted." The trial court also ordered the Plaintiff to permanently cease dissemination of the confidential medical information.
On 5 March 2008, Plaintiff filed a complaint against Laurel Health Care Company, Sandra Lynn Wood, Alan Finlayson, and Defendant. In his complaint Plaintiff sought relief for his alleged wrongful termination. Plaintiff's wrongful termination action was filed in Wake County Superior Court as "08 CVS 3715." On 14 April 2008, Defendant, Laurel Health Care Company, filed an answer and motion seeking to dismiss Plaintiff's wrongful termination action. In the motion Defendant alleged dismissal was appropriate because there was a lack of subject matter jurisdiction, insufficiency of process, insufficiency of service of process, and Plaintiff failed to state grounds upon which relief could be granted.
Sandra Lynn Wood and Alan Finlayson will be identified as ("non-corporate Defendants.").
On 22 May 2008, Defendant filed a motion to show cause alleging that Plaintiff continued to publish confidential medical information, violating the trial court's 30 August 2006 order in file number 05 CVS 3411. Addressing various motions raised by the parties in file number 08 CVS 3715 action, the trial court concluded that "[p]ersonal jurisdiction over Defendant Oak Health Care Investors of North Carolina, Inc., d/b/a The Laurels of Forest Glenn and Laurel Health Care Company was not obtained due to Plaintiffs' failure to serve the[m] . . . as required by Rule 4 of the North Carolina Rules of Civil Procedure." The trial court dismissed, with prejudice, the Plaintiff's complaint as to Defendant and the Laurel Health Care Company. On 9 December 2008, the trial court dismissed the non-corporate Defendants. On 14 September 2009, the trial court held Plaintiff in civil contempt for wilfully violating the August 2006 order in file number 05 CVS 3411.
Though Plaintiff appeals from a trial court order addressing several legal actions, the bulk of Plaintiff's arguments on appeal generally involve the trial court's order relating to file number 08 CVS 3715. On appeal Plaintiff contends that: (I) the trial court erred in dismissing Defendant for insufficiency of service of process and lack of personal jurisdiction; (II) the trial court erroneously failed to determine that Defendant failed to properly plead the defense lack of personal jurisdiction and insufficiency of service of process; (III) the trial court erroneously dismissed the non-corporate Defendants from the action; (IV) the trial court erred in dismissing the original complaint in file number 08 CVS 3715; (V) the trial court erred in striking repeat summonses; (VI) the trial court erroneously awarded attorney's fees to the prevailing party; and (VII) the trial court erroneously held Plaintiff in contempt of court.
Preliminarily, we address several motions filed by the parties on appeal. In this action, Plaintiff filed one brief, two "reply briefs," one "amended reply brief," and one "second amended reply brief." Additionally, Plaintiff filed a "[R]ule 9(b)(5) supplement to the printed record on appeal." On 10 September 2010, Defendant filed a motion to strike Plaintiff's reply briefs and attempts to supplement the record on appeal.
The North Carolina Rules of Appellate Procedure provide that an appellant may file a reply brief if an appellee presents new or additional issues in its brief. N.C. R. App. P. 28(h)(2). However, Plaintiff fails to identify any new or additional issues as contemplated by the Rules of Appellate Procedure. See N.C. R. App. P. 28(c). Accordingly, we grant Defendant's motion to strike Plaintiff's numerous reply briefs. Also, because the record is sufficient to respond to the issues on appeal, we grant Defendant's motion to strike the supplemental record information. See N.C. R. App. P. 9(b)(5)(a). Plaintiff also filed a motion requesting that this court impose sanctions against Defendant. However, because Plaintiff fails to identify any "substantial failure" or "gross violation" of the nonjurisdictional requirements of the Rules of Appellate Procedure, we deny Plaintiff's motion for sanctions. See Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 199, 657 S.E.2d 361, 366 (2008).
While Plaintiff raises a litany of substantive arguments on appeal, because he failed to file timely notice of appeal from the trial court orders upon which many of his appellate arguments are based, these issues are not properly before our Court for appellate review. "As a general rule, the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken." Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994). "Proper notice of appeal is a jurisdictional requirement that may not be waived." Id. "An appellant's failure to designate a particular judgment or order in the notice of appeal generally divests this Court of jurisdiction to consider that order." Yorke v. Novant Health, Inc., 192 N.C. App. 340, 347, 666 S.E.2d 127, 133 (2008), disc. review denied, 363 N.C. 655, 677 S.E.2d 461 (2009). Individuals filing notice of appeal are not only required to identify the orders from which they appeal, they are required to do so in a timely manner.
The North Carolina Rules of Appellate Procedure provide a party with a thirty day period in which to file notice of appeal from a trial court's judgment or order in a civil action. Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417 (1997); N.C. R. App. P. 3(c). Typically, the thirty day notice period begins "after entry of judgment if the party has been served with a copy of the judgment within the three day period prescribed by Rule 58 of the Rules of Civil Procedure." N.C. R. App. P. 3(c)(1). The notice requirements of the Rules of Appellate Procedure are "jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed." Rosenstadt v. Queens Towers Homeowners' Ass'n, 177 N.C. App. 273, 277, 628 S.E.2d 431, 433 (2006).
In this case, Plaintiff failed to timely appeal from several orders designated in his notice of appeal. Plaintiff filed his notice of appeal in this action on 18 November 2009. In his notice of appeal, Plaintiff explained he was appealing from a final judgment in which the trial court denied his numerous motions to alter or amend a number of orders relating to file number 05 CVS 3411, 08 CVS 3715 and 09 CVS 6918. Rule 59(e) of the Rules of Civil Procedure "governs motions to alter or amend a judgment, and such motions are limited to the grounds listed in Rule 59(a)." N.C. Alliance For Transp. Reform, Inc. v. N.C. Dep't Of Transp., 183 N.C. App. 466, 469, 645 S.E.2d 105, 108 (2007); N.C. Gen. Stat. § 1A-1, Rule 59(a) (2009). A motion to alter or amend a judgment will be granted upon a showing that:
(1) Any irregularity by which any party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Newly discovered evidence material for the party making the motion which he could not, with reasonable diligence, have discovered and produced at the trial;
(5) Manifest disregard by the jury of the instructions of the court;
(6) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;
(7) Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law;
(8) Error in law occurring at the trial and objected to by the party making the motion, or
(9) Any other reason heretofore recognized as grounds for new trial.
N.C. Gen. Stat. § 1A-1, Rule 59(a). Upon a timely filing of a motion to alter or amend a judgment, the time for filing written notice of appeal in a civil action is tolled. N.C. R. App. P. 3(c)(3). "The full time for appeal commences to run and is to be computed from the entry of the order granting or denying the motions under . . . Rule 59." Middleton v. Middleton, 98 N.C. App. 217, 220, 390 S.E.2d 453, 455 (1990) (citation omitted); N.C. R. App. P. 3(c)(3).
"[W]hen a party makes a motion pursuant to Rule 59 that is not a proper Rule 59 motion, the time for filing an appeal is not tolled." N.C. Alliance For Transp. Reform, Inc., 183 N.C. App. at 470, 645 S.E.2d at 108. To qualify as a Rule 59(e) motion which tolls the time to file a notice of appeal, the motion must reveal the underlying basis for filing the motion. Smith, 125 N.C. App. at 606, 481 S.E.2d at 417. The underlying basis must be derived from one of the nine grounds listed in Rule 59(a). Id. Moreover, the motion for an amended judgment may not be used "as a means to reargue matters already argued or to put forth arguments which were not made but could have been made." Id.
In his notice of appeal, Plaintiff designated that he was appealing from the trial court's denial of his "motion to alter or amend the Court's September 10, 2009 order on Plaintiff's Rule 63, Rule 59, and Rule 60 Motions on Judge Spencer's July 25, 2008 and August 29, 2008 orders dismissing case 08 CVS 3715." Essentially, Plaintiff seeks to appeal from a trial court's decision to deny his motion to amend an earlier motion to amend.
Our Supreme Court has held that in some instances, when a party files a subsequent Rule 59 motion to amend, they are entitled to have the time they are afforded to file notice of an appeal tolled. See Sherrod v. Nash General Hospital, 348 N.C. 526, 531, 500 S.E.2d 708, 711 (1998) (holding that "[w]hen a party files a subsequent Rule 59 new-trial motion asserting different grounds as basis for a new trial, that party should still be entitled to application of the tolling provision of Rule 3(c)."). However, Sherrod is factually distinguishable from the present action. There, the plaintiff orally moved for a new trial following a jury verdict as to liability in a negligence action. Id. at 529, 500 S.E.2d at 710. The plaintiff's motion was made after the jury verdict but before the trial court entered its judgment. Id. at 529-30, 500 S.E.2d 710. Later, the plaintiff filed two written motions for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. Id. at 530, 500 S.E.2d at 710. In these motions the plaintiff raised a number of issues that differed substantially from those raised in his oral motion. Id. Holding that the plaintiff's subsequent written motion extended the tolling period, the Supreme Court reasoned that "[i]t is clear from a reading of Rule 59(a) that the grounds set forth there contemplate situations or circumstances which may arise or become known after a party has made the usually perfunctory motions for a new trial at the end of the trial." Id. at 531, 500 S.E.2d at 711.
On 25 July 2008 the trial court dismissed Plaintiff's complaint as to Defendant. In its dismissal order the trial court generally reasoned that improper service of process prevented the court from obtaining personal jurisdiction in the wrongful termination suit. "Although Plaintiff's Complaint was dismissed with prejudice, Plaintiff again served Summonses and the same Complaint on Defendant Oak Health Care Investors of North Carolina, Inc. d/b/a The Laurels of Forest Glenn and Defendant Laurel Health Care Company." On 12 August 2008, Plaintiff filed a motion to alter or amend the trial court's 25 July 2008 dismissal order. On 29 August 2008, the trial court issued an order striking the second of summonses served by Plaintiff and ordered Plaintiff to pay costs to Defendants. After each action Plaintiff filed a motion to amend the trial court's order which was eventually denied.
After filing at least one additional motion to amend which was denied, the trial court issued its final order denying Plaintiff's motion to amend on 9 November 2009. It was from this order that Plaintiff filed his notice of appeal. However, there was nothing prohibiting Plaintiff from raising the arguments that he made in his final motion to amend, in the motions to amend that he made following the trial court's substantive order. See Smith, 125 N.C. App. at 606, 481 S.E.2d at 417 (holding that a motion to amend cannot be used to "put forth arguments which were not made but could have been made."). Plaintiff's motions to amend raised no issues that could not have been raised in the other various motions to amend that he filed earlier. Because Plaintiff's motionsth were not proper motions to amend, the time to file notice of appeal for the underlying orders was not tolled. Accordingly, Plaintiff's arguments with respect to these issues are waived.
On 14 September 2009, the trial court issued an order holding Plaintiff in civil contempt for violating an order prohibiting him from disseminating confidential medical information. In his final argument on appeal, Plaintiff contends that the trial court erroneously held him in contempt. We disagree.
"The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law." Sharpe v. Nobles, 127 N.C. App. 705, 709, 493 S.E.2d 288, 291 (1997) (citation omitted). Unchallenged findings of fact are binding on appeal. Tucker v. Tucker, 197 N.C. App. 592, 594, 679 S.E.2d 141, 143 (2009) (citation omitted). The conclusions of law in a contempt order are reviewed de novo on appeal. Id. Our Court has also explained that:
[t]o hold a defendant in civil contempt, the trial court must find the following: (1) the order remains in force, (2) the purpose of the order may still be served by compliance, (3) the non-compliance was willful, and (4) the non-complying party is able to comply with the order or is able to take reasonable measures to comply.
Shippen v. Shippen, ___ N.C. App. ___, ___, 693 S.E.2d 240, 243 (2010) (citing N.C. Gen. Stat. § 5A-21 (2009)). The "willful" non-compliance with a court order is characterized by an individual's "`ability to comply with the court order and a deliberate and intentional failure to do so.'" Spencer v. Spencer, 133 N.C. App. 38, 46, 514 S.E.2d 283, 288 (1999) (quoting Bennett v. Bennett, 21 N.C. App. 390, 393, 204 S.E.2d 554, 556 (1974)).
In this case, the trial court appropriately held Plaintiff in contempt for his violation of a permanent injunction. In its contempt order the trial court found that:
18. The publication of the prohibited medical information was willful, as shown by the Defendant's admission that he is the admitted author of some other internet publications described herein that also contain prohibited medical information.
19. Defendant Johnson had the ability to comply with Judge Stanback's August 31, 2006 Order by simply not publishing the prohibited medical information after the date of Judge Stanback's Order.
20. The publication of the prohibited medical information by Defendant Johnson shows a deliberate and intentional failure to comply with the Courts' August 31, 2006 Order.
21. Judge Stanback's August 31, 2006 Order remains in force as of the date of this Order.
22. The purpose of the Court's August 31, 2006 Order is still . . . served by the Court requiring Defendant Johnson to cease continued or future publication of confidential medical information of the Plaintiffs' clients.
23. Defendant Johnson is currently able to comply with the Court's August 31, 2006 Order simply by not publishing the prohibited medical information and by removing currently published material that is prohibited under that Order.
24. The Court finds that Defendant Johnson has willfully violated the Court's August 31, 2006 Order in that Defendant Johnson has published certain medical and/or health care information that was prohibited under said Order.
25. The Court hereby finds that Defendant Johnson's actions described herein constitute civil contempt under N.C. Gen. Stat. § 5A-21.
Because Plaintiff failed to challenge these findings of fact, they are binding on appeal. See Tucker, 197 N.C. App. at 594, 679 S.E.2d at 143. Based on these findings, the trial court appropriately held Plaintiff in contempt of court for violation of its previous order.
Plaintiff does not expressly challenge the trial court's findings of fact or conclusion of law in the contempt order. Instead, Plaintiff argues that because the medical information he published was "public information", the trial court's decision to hold him in contempt of court was erroneous. However, assuming that the underlying order prohibiting Plaintiff from publishing the confidential medical information was erroneous, Plaintiff was still required to adhere to the order until it was corrected on appeal. See Rivenbark v. Southmark Corp., 93 N.C. App. 414, 419-20, 378 S.E.2d 196, 200 (1989) (holding that when an order is rendered upon a mistaken view of the law, the order is still valid until it is corrected on appeal.). Accordingly, Plaintiff's argument is without merit.
Plaintiff also tends to argue that the trial court's issuance of a gag order was erroneous. We disagree.
In Beaufort Cty Bd. of Educ. v. Beaufort Cty. Bd. of Comm'rs, our Court explained that the issuance of a gag order in a judicial proceeding is a form of prior restraint and is presumptively unconstitutional. 184 N.C. App. 110, 116, 645 S.E.2d 857, 860 (2007). "The party asserting validity of the order must establish: (1) `a clear threat to the fairness of the trial;' (2) `such threat is posed by the actual publicity to be restrained;' and (3) `no less restrictive alternatives are available' to rebut the presumptive unconstitutionality of gag orders." Id. at 116, 645 S.E.2d at 861. In each gag order the trial court must make findings of fact indicating that it considered each factor listed above, and those findings must support the court's conclusions of law. Id. "Finally, the gag order must comply with the specificity requirements of the First Amendment." Id. (quotation and brackets omitted).
Here, the trial court issued an order on 9 September 2009, prohibiting the publication of "any extra-judicial statement that disparages an opposing party[.]" In its order the trial court explained that "[t]here have been substantial extra-judicial statements made in these related cases, which have published certain statements, information, and/or documents that may not be admissible at a trial on these or related matters and which could affect the fairness of a trial." After considering several less restrictive alternatives, the trial court determined that prohibiting the further dissemination of communication material that was already in existence was necessary to maintain a fair trial. The trial court's order was only limited to disparaging statements published by Plaintiff. A review of the trial court's order reveals that the trial court correctly applied the relevant law and came to an appropriate legal conclusion. Accordingly, we dismiss in part and affirm in part the trial court's decision.
Dismissed in part; Affirmed in part.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).