Summary
dismissing appeal despite class counsel's filing record seven days late and filing motion for extension of time as soon as counsel realized record was untimely
Summary of this case from Copper v. DenlingerOpinion
No. COA99-1228
Filed 17 October 2000
Appeal and Error — record — untimely filed — appeal dismissed
An appeal by class counsel from a class action final settlement order concerning attorney fees was dismissed where the record on appeal was not timely filed in violation of N.C.R. App. P. 12(a); class counsel's personal conflicts from a district court hearing, a $1.4 million real estate closing, a mayoral debate, and a tight mayoral race are by no means valid excuses for violation of the North Carolina Appellate Rules. Although Rule 2 permits the Court of Appeals to suspend the rules to prevent a manifest injustice, the Court chose not to do so as no manifest injustice to a party was at stake, class counsel has a history of rules violations, and the individual plaintiffs will suffer no harm.
Judge WALKER dissenting.
Appeal by plaintiffs Dale E. Taylor, B. J. Fore, Dillard A. Brown, the Estate of James Floyd, Raymond Higgins, Thomas P. Deighton, and Ricky E. Shehan, from a class action final settlement order entered 5 March 1999 by Judge Claude S. Sitton in Caldwell County Superior Court. Heard in the Court of Appeals 23 August 2000.
Kuehnert Bellas Bellas, PLLC, by Daniel A. Kuehnert and Steven T. Aceto, for plaintiff-appellants.
Wilson, Palmer, Lackey Rohr, P.A., by David S. Lackey, for plaintiff-appellee Derek K. Poarch; Todd, Vanderbloemen, Brady LeClair, P.A., by Bruce W. Vanderbloemen, for plaintiff-appellees Frank M. Hicks, Jr., Sid A. Pope, Tim Stoker, Sharon Cook Poarch and Arnold Dula; Potter, McCarl Whisnant, P.A., by Lucy R. McCarl and Steve B. Potter, for plaintiff-appellees Jack Warlick, Jim Higgins, Mike Phillips, Gary Clark, Harold Brewer, Ronda Watts, Helen Gallardo and Michael Wayne Sutton.
Groome, Tuttle, Pike Blair, by Edward H. Blair, Jr., for defendant-appellee City of Lenoir.
Attorney General Michael F. Easley, by Special Deputy Attorney General Alexander McC. Peters, for defendant-appellees Board of Trustees of the North Carolina Local Government Employees' Retirement System and its individually named members or their successors, Jack W. Pruitt (Successor to Dennis Ducker), Harlan E. Boyles, and the State of North Carolina.
Plaintiffs' class counsel ("class counsel") appeal from a class action final settlement accepting in part and denying in part their motion/petition ("motion") for attorney fees based upon the common fund doctrine. During the course of this litigation, class counsel agreed by stipulation not to seek to recover attorney fees from defendants the Board of Trustees of the North Carolina Local Government Employees' Retirement System and its individual trustees or successors, Dennis Ducker, Harlan E. Boyles, and the State of North Carolina. As part of the final settlement agreement, the City of Lenoir agreed to pay $96,000.00 in full and complete satisfaction of any and all claims and causes of actions against it as to this litigation, thus freeing it from the obligation of paying any additional attorney fees directly.
In the final settlement agreement, the trial court found that the $96,000.00 cash settlement constituted a common fund procured as a direct result of this litigation and awarded twenty-seven and a half percent (27.5%) of said fund to class counsel as their sole attorney fees. Class counsel immediately made a motion for additional attorney fees claiming that their fees should be paid from an additional common fund based upon that portion of the City of Lenoir's accrued liability owed to the Local Government Employees' Retirement System ("LGERS") attributable to sixty-two class members who received full LGERS enrollment as a result of the City of Lenoir's 1995 conversion into LGERS. The trial court rejected the motion concluding that the plaintiff class members' interests in present and/or future LGERS benefits are not an identifiable amount of monies subject to sufficient control of the court, and therefore not a common fund. Class counsel appeals from the trial court's denial of their motion for additional attorney fees based upon the common fund doctrine from the group of sixty-two plaintiffs, and bring forward several assignments of error. However, we are unable to reach the merits of these arguments as class counsel's appeal must be dismissed.
"The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal." Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). The rules "are designed to keep the process of perfecting an appeal flowing in an orderly manner." Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979). "'Counsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process.'" Id. (quoting Ledwell v. County of Randolph, 31 N.C. App. 522, 523, 229 S.E.2d 836, 837 (1976)).
In settling the record on appeal, N.C.R. App. P. 11(b) states in pertinent part:
Within 21 days . . . after service of the proposed record on appeal upon him an appellee may serve upon all other parties a notice of approval of the proposed record on appeal, or objections, amendments, or a proposed alternative record on appeal in accordance with Rule 11(c). If all appellees within the times allowed them either serve notices of approval or fail to serve either notices of approval or objections, amendments, or proposed alternative records on appeal, appellant's proposed record on appeal thereupon constitutes the record on appeal.
In this case, class counsel served the proposed record on appeal by hand delivery on 19 August 1999 to appellees' counsel except Alexander McC. Peters, who was served via United States mail on that same date. All counsel for the appellees chose to neither stipulate to the proposed record, nor file any notice of approval, objections, amendments or proposed alternative record on appeal. Thus twenty-four (24) days (twenty-one (21) days per N.C.R. App. P. 11(b) plus three (3) days as per N.C.R. App. P. 27(b) because Mr. Peters was served by United States mail) after 19 August 1999, or on 13 September 1999 (12 September 1999 was a Sunday), the proposed record on appeal became the record on appeal. According to N.C.R. App. P. 12(a), "[w]ithin 15 days after the record on appeal has been settled by any of the procedures provided in this Rule 11 or Rule 18, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken." This Court has not hesitated in the past to dismiss an appeal for failure to timely file the record on appeal as per N.C.R. App. P. 12(a). See Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316 (1999) (appeal dismissed because pro se appellant violated the appellate rules, including failing to file the record on appeal within fifteen (15) days after it was settled in violation of Rule 12(a)); see also Higgins v. Town of China Grove, 102 N.C. App. 570, 402 S.E.2d 885 (1991) (violation of appellate rules led to dismissal in case where appellant failed to settle record and time for settling record had expired, thus record was not filed within fifteen (15) days as per Rule 12(a)).
Here, fifteen (15) days from 13 September 1999 was 28 September 1999, thus class counsel had until that date to file the record on appeal with this Court. Yet, they failed to do so. Instead, class counsel Daniel A. Kuehnert certified that he served a copy of a Rule 27 motion for extension of time on the appellees by United States mail on 28 September 1999. However, the envelope in which the motion was mailed to the appellees was postmarked 30 September 1999 and was not received until 1 October 1999. Furthermore, the motion for extension of time and the record on appeal were not filed with this Court until 5 October 1999. Defendants and several individual plaintiff class members("plaintiff-appellees") immediately filed motions to deny the extension of time and to dismiss the appeal.
Simply stated, the record on appeal was not timely filed with this Court in violation of N.C.R. App. P. 12(a). The sole reasons offered for the late filing were personal conflicts of class counsel Mr. Kuehnert. A district court hearing, a $1.4 million real estate closing, a mayoral debate, and a tight race for the office of Mayor of Morganton are by no means valid excuses for the violation of the North Carolina Appellate Rules. We note that denial of class counsels' motion for extension of time and dismissal of this appeal will not prejudice any rights of the individual named class plaintiffs.
N.C.R. App. P. 25(a) states in pertinent part:
If after giving notice of appeal from any court, commission, or commissioner the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed.
The time deadlines set out in our appellate rules are important and should be followed. Not only was class counsel late in filing the record on appeal in violation of N.C.R. App. P. 12(a), but they also failed to file their motion for extension of time within the deadline prescribed for the record on appeal. Class counsel also did not petition this Court for a writ of certiorari.
We are aware that, pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure, at our discretion, this Court could choose to suspend the requirements of the Rules of Appellate Procedure. N.C.R. App. P. 2 ("[t]o prevent manifest injustice to a party, . . . appellate [court] may, . . . suspend or vary the requirements . . . of any of [the appellate] rules . . ."). However we choose not to do so with the case at bar as no "manifest injustice to a party" is at issue in this civil case. Here, class counsel violated the appellate rules, therefore class counsel should be held accountable for their actions. We note again that individual plaintiffs suffer no harm from our ruling, and in fact, several individual plaintiffs filed briefs during this appeal objecting to class counsel's claim for attorney fees.
This Court has recently dismissed appeals for appellate rules violations. See Bowen v. N.C. Dep't of Health and Human Servs., 135 N.C. App. 122, 519 S.E.2d 60 (1999); Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316 (1999); Talley v. Talley, 133 N.C. App. 87, 513 S.E.2d 838, review denied, 350 N.C. 599, 537 S.E.2d 495 (1999); Webb v. McKeel, 132 N.C. App. 816, 513 S.E.2d 596 (1999); Duke University v. Bishop, 131 N.C. App. 545, 507 S.E.2d 904 (1998).
Class counsel's motion for extension of time is denied, and defendants' and plaintiff-appellees' motions to dismiss are granted.
Appeal dismissed.
Judge SMITH concurs. Judge WALKER dissents in a separate opinion.