In re: Moretz
Date Filed2022-12-20
Docket22-172
Cited0 times
StatusPublished
Syllabus
Foreclosure Appellate Rule Violations Dismissal
Full Opinion (html_with_citations)
IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-840
No. COA22-172
Filed 20 December 2022
Lee County, No. 20 SP 95
IN THE MATTER OF THE FORECLOSURE OF A DEED OF TRUST EXECUTED
BY HERBERT C. MORETZ dated April 11, 2001. RECORDED IN BOOK 745, PAGE
62, LEE COUNTY REGISTRY, BY EDDIE S. WINSTEAD, III, SUBSTITUTE
TRUSTEE
Appeal by Respondent from an order entered 4 May 2021 by Judge J. Stanley
Carmical in Lee County Superior Court. Heard in the Court of Appeals 4 October
2022.
Elizabeth Myrick Boone and Sanford Law Group, by Eddie Winstead, for
Appellee Eddie S. Winstead, III, Substitute Trustee.
The Key Law Office, by Mark A. Key, for Respondent-Appellant Amanda
Tillman.
INMAN, Judge.
Ā¶1 Amanda Tillman (āRespondentā) appeals from an order foreclosing on her
home pursuant to an unpaid promissory note and unsatisfied deed of trust executed
by the propertyās prior owner. Also pending before this Court are several motions,
including: (1) a motion by Appellee Eddie S. Winstead, III, as Substitute Trustee (the
āTrusteeā), to dismiss the appeal for numerous gross and substantial appellate rule
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2022-NCCOA-840
Opinion of the Court
violations; (2) two motions by Respondent to amend the record to include the order
from which she appeals; and (3) a motion to strike Respondentās motions to amend
and her responses to the motion to dismiss. After careful review, we grant the
Trusteeās motion to dismiss Respondentās appeal in light of the gross and substantial
appellate rule violations evident in the record. We dismiss the remaining motions as
moot.
I. FACTUAL AND PROCEDURAL HISTORY
A. Underlying Facts and the Foreclosure Proceeding
Ā¶2 Respondent was bequeathed a home in Lee County through a codicil to the
Last Will and Testament of Herbert Moretz (āDecedentā). That property was subject
to a 2001 deed of trust in favor of Sanford Financial, LLC, who also held a promissory
note secured by the deed of trust evincing a $123,000 debt owed by Decedent.
Decedent never repaid the loan.
Ā¶3 Sanford Financial, LLC was originally incorporated in 2000 by organizer and
registered agent Robert L. Underwood. The registered office was located in Raleigh.
In 2005, Mr. Underwood filed articles of dissolution with the written consent of all
members, who are unknown.
Ā¶4 On 4 February 2020, Zachary M. Moretz filed articles of organization for
another Sanford Financial, LLC with the Secretary of State. Zachary Moretz was
listed as the registered agent, and the companyās registered office was located in
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Concord. The limited documents in the record do not disclose whether the new
Sanford Financial, LLC is related to the previously dissolved entity of the same name,
nor does the limited record show a transfer of Decedentās obligation to the new entity.
Ā¶5 The new Sanford Financial served a notice of default on Decedentās estate on
28 August 2020. The estate failed to cure the default, so Sanford Financial pursued
foreclosure. The foreclosure was heard before the clerk of superior court, who entered
an order for foreclosure on 10 March 2021. Respondent appealed that order to
Superior Court, though no notice of that appeal appears in the record.
Ā¶6 The Superior Court heard Respondentās appeal on 19 April 2021. No transcript
of the hearing has been filed with this Court, and the record on appeal only includes
three of at least seven exhibits introduced at trial. The trial court entered an order
of foreclosure on 4 May 2021, but that order is also absent from the record on appeal.
B. Respondentās Notice of Appeal and Subsequent Trial Court Motions
Ā¶7 Respondent filed a notice of appeal from the Superior Courtās order on 12 May
2021. The certificate of service attached to the notice of appeal is irregular, as it
states it was served on 6 May 2021 and signed by counsel four days later on 10 May
2021.
Ā¶8 On 14 May 2021, Respondent filed a motion to stay the order of foreclosure,
which was heard remotely on 3 June 2021 due to Respondentās counselās positive
COVID test. The trial court set an appeal bond at $20,000 and directed Respondent
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2022-NCCOA-840
Opinion of the Court
to prepare and serve a written order. Respondentās counsel was hospitalized
following the hearing and continued to experience serious health complications. No
order granting the stay was prepared and entered until December 2021, and no bond
was posted prior to that date.
Ā¶9 Respondent was required to serve the proposed record on appeal by 20
September 2021 under N.C. R. App. P. 11(b) (2021),1 as the transcript of proceedings
was delivered on 5 August 2021. On 7 September 2021, Respondent filed a motion
for extension of time to serve the proposed record up to and including 1 October 2021.
The motion was never noticed or calendared for hearing. On 15 November 2021,
approximately six weeks after the deadline for Respondent to serve a proposed record,
the Trustee moved in the trial court to dismiss the appeal pursuant to N.C. R. App.
P. 25(a) (2021). That motion was heard on 1 December 2021, at which time the trial
court sua sponte, under an unspecified plenary power āto prevent manifest injustice,ā
elected to hold the motion to dismiss in abeyance and extend Respondentās deadline
to serve the proposed record to 15 December 2021.
Ā¶ 10 Respondent served the proposed record on 15 December 2021, and the trial
court subsequently denied the Trusteeās motion to dismiss the appeal. On 26 January
1 Because this appeal was filed in 2021, all subsequent references to the North
Carolina Rules of Appellate Procedure are to the version effective 1 January 2021.
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Opinion of the Court
2022, the Trustee noticed an appeal of the denial of his motion to dismiss the appeal.2
The parties agreed to settle the record on 20 February 2022, and the final record was
filed on 2 March 2022. The stipulation settling the record on appeal is signed by the
parties but is undated, and the certificate of service for the record itself is irregular
in that it is both unsigned and undated.
C. Court of Appeals Proceedings
Ā¶ 11 With the appeal docketed and the record filed, Respondent had until 1 April
2022 to file her brief under N.C. R. App. P. 13(a)(1). Respondent failed to do so. On 1
and 4 April 2022, Respondentās counsel emailed Trusteeās counsel regarding an
extension but never filed such a motion with the Court.
Ā¶ 12 On 25 April 2022, Trusteeās appellate counsel moved to dismiss the appeal for
Respondentās failure to file an appellant brief. On 3 May 2022, Respondentās counsel
responded to the motion, asserting that he had intended to file a motion for an
extension but that his assistant, as attested in an affidavit attached to the response,
inadvertently failed to do so and misinformed him that it had been filed.
Respondentās counsel also filed on that date, 24 days after the expiration of
Respondentās deadline to file an appellant brief, a motion for extension of time to file
that brief. This Court denied the Trusteeās motion to dismiss the appeal and granted
2 The Trustee would later voluntarily dismiss his appeal on 1 April 2022.
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Respondentās motion for extension of time, giving Respondent until 23 May 2022 to
file a brief with this Court.
Ā¶ 13 Respondent filed her brief with this Court on 23 May 2022. However, the brief
omitted a table of authorities, issues presented page, standard of review section, and
attorney signature as required by N.C. R. App. P. 28(b)(1), (2), and (6).
Ā¶ 14 The Trustee again moved this Court to dismiss the appeal on 22 June 2022 for
failure to comply with the appellate rules. The motion asserts the following appellate
rule violations:
(1) Failure to timely serve the proposed record on appeal under N.C. R. App. P.
11.
(2) Failure to secure a proper extension of time to serve the proposed record under
N.C. R. App. P. 11 and 27, asserting that Judge Gilchrist lacked authority to
grant such an extension after expiration of the time for service.
(3) Failure to timely file the record on appeal under N.C. R. App. P. 12.
(4) Failure to serve the record and demonstrate service through a proper
certificate of service under N.C. R. App. P. 26.
(5) Failure to include the order appealed from in the record under N.C. R. App. P.
9.
(6) Failure to include all documents necessary to the disposition of the appeal as
required by N.C. R. App. P. 9.
(7) Failure to execute a proper certificate of service for the notice of appeal as
contemplated by N.C. R. App. P. 3 and 26.
(8) Failure to comply with the stay and bond provisions of N.C. R. App. P. 8.
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(9) Failure to file an appellate information statement as required by N.C. R. App.
P. 41.
(10) Failure to file the transcript as required by N.C. R. App. P. 7.
(11) Failure to comply with various provisions of N.C. R. App. P. 28 in the
composition of the appellant brief.
Ā¶ 15 Respondentās counsel responded to the second motion to dismiss the appeal on
12 July 2022. He did not dispute the irregularities in the certificates of service
appearing in the record, he conceded his failure to include the order appealed from in
the record on appeal, and he acknowledged untimely filing the appellate information
statement. He likewise admitted his noncompliance with the briefing requirements
of the Rules, ascribing this deficiency to his assistant.
Ā¶ 16 At no point did Respondentās counsel address the failure to file the trial
transcript with this Court, and the response itself contains several irregularities,
namely: (1) the certificate of service states that it was served via email on 3 May 2022;
and (2) the response refers to several exhibits, none of which is attached to or included
in the filing. Respondent denied the remainder of the alleged rule violations.
Ā¶ 17 Respondent filed with this Court a second response to the Trusteeās motion to
dismiss on 13 July 2022, a day late under N.C. R. App. P. 10(a). This response is
largely identical to the first response, but also includes a corrected Respondentās brief
and two emails: one referenced in the body of both responses, and one that appears
irrelevant to this appeal. As with the first response, the second response omitted
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several exhibits or attachments referenced therein. The certificate of service again
includes an irregular service date of 3 May 2022, and it also incorrectly certifies that
the second response was filed on 12 July 2022.
Ā¶ 18 On 15 July 2022, Respondentās counsel filed with this Court two substantively
identical motions to amend the record. Both seek to add the superior courtās
foreclosure order to the record on appeal. The motions also include a 16 May 2022
email from Respondentās counsel to the Trusteeās appellate counsel acknowledging
that there are other ānecessary missing documents from the record on appeal,ā
namely (1) Respondentās notice of appeal from the clerkās order to superior court, and
(2) any pleadings showing the substitution of the Trustee. However, none of these
additional documents is included or referenced in Respondentās motion to amend the
record on appeal. The certificates of service for these motions state that they were
served on the Trustee and his counsel via email on 15 July 2022.
Ā¶ 19 On 27 July 2022, Trusteeās counsel filed with this Court a motion to strike the
13 July 2022 response to the second motion to dismiss as untimely and unserved,
asserting that it was never emailed as asserted in the certificates of service. The
motion further asserts that Respondentās motions to amend were never served via
email as claimed in their certificates of service. Respondent filed no response to this
motion.
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II. ANALYSIS
Ā¶ 20 Appellate rule violations fall into three categories: (1) waivers arising at trial;
(2) jurisdictional defects; and (3) non-jurisdictional defects. Dogwood Dev. & Mgmt.
Co. v. White Oak Transp. Co., 362 N.C. 191, 194,657 S.E.2d 361, 363
(2008).
Jurisdictional defects mandate dismissal, id. at 197,657 S.E.2d at 365
, while non-
jurisdictional defects subject an appeal to dismissal if they are āgrossā or
āsubstantial,ā id. at 199,657 S.E.2d at 366-67
. This Court identifies gross or
substantial violations by examining (1) āwhether and to what extent the
noncompliance impairs the courtās task of review and whether and to what extent
review on the merits would frustrate the adversarial process,ā id. at 200,657 S.E.2d at 366-67
; and (2) āthe number of rules violated,āid. at 200
,657 S.E.2d at 367
.
A. Specific Rule Violations
Ā¶ 21 Reviewing the partiesā motions and responses, including Respondentās
admitted errors, it is apparent that Respondentās counsel has violated several
appellate rules. The following violations, at a minimum, are evident on the face of
the record:
(1) Failure to include the order appealed from under N.C. R. App. P. 9(a)(1)h.;
(2) Numerous failures to serve and/or include proper proof of service on several
filings, including the notice of appeal, as required by N.C. R. App. P. 3(e), 26(b),
26(d), and/or 37(a);
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(3) Failure to timely file an appellate information statement as required by N.C.
R. App. P. 41;
(4) Failure to file the transcript as required by N.C. R. App. P. 7(f) and 9(c)(3)b.;
(5) Failure to comply with various provisions of N.C. R. App. P. 28 in the
composition of the appellate brief;
(6) Failure to include in the record those materials required by N.C. R. App.
9(a)(1)e., g., i., and j.; and
(7) Filing a response to an appellate motion out-of-time in violation of N.C. R. App.
P. 37(a).
Beyond these specific rule violations, Respondentās duplicative responses to the
pending motion to dismiss fail to include all of the exhibits and attachments the
responses reference.
Ā¶ 22 Respondentās counsel also failed to timely serve the proposed record on appeal
notwithstanding the trial courtās order attempting to extend the service period. A
motion to extend an expired deadline under the appellate rules āmust be in writing
and with notice to all other parties and may be allowed only after all other parties
have had an opportunity to be heard.ā N.C. R. App. P. 27(d). Respondentās counsel
filed no such written motion; while Respondent did move to extend the initial
proposed record deadline in writing from 20 September to 1 October 2021, her counsel
did not serve a notice or otherwise arrange for a hearing on that motion. When the
trial court addressed the matter sua sponte in December 2021, in the absence of a
written motion, it had no authority to extend the appellate deadline, so its order doing
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so is void. See Cadle Co. v. Buyna, 185 N.C. App. 148, 151,647 S.E.2d 461, 464
(2007)
(holding a trial court lacked authority to extend the time for serving a proposed record
on oral motion after said time expired). Respondent points to no rule or caselaw
demonstrating the validity of the trial courtās order in the face of N.C. R. App. P. 27(d)
and Cadle Co., and we therefore hold that the proposed record in this case was not
timely filed as required by N.C. R. App. P. 11(b).
B. The Above Violations Are Gross, Substantial, and Warrant Dismissal.
Ā¶ 23 The first violation identified aboveāRespondentās counselās failure to include
the order appealed from in the record on appealāis a jurisdictional defect that
mandates dismissal. State v. McMillian, 101 N.C. App. 425, 427,399 S.E.2d 410, 411
(1991). While Respondentās counsel has moved to correct this defect, it nonetheless
constitutes a violation to be considered in determining whether the additional rule
violations are so gross and substantial as to warrant dismissal. Indeed, those other
rule violations meet that standard.
Ā¶ 24 For example, Respondentās counselās failure to timely serve the proposed
record, standing alone, may warrant dismissal. See Webb v. McKeel, 132 N.C. App.
817, 818,513 S.E.2d 596, 597-98
(1999) (dismissing appeal for failure to timely serve
proposed record on appeal). But see Powell v. City of Newton, 200 N.C. App. 342, 350,
684 S.E.2d 55, 61 (2009) (holding under those facts that failure to timely serve
proposed record on appeal was not so egregious as to warrant dismissal).
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Ā¶ 25 Respondentās counselās other rule violations render the record inadequate to
resolve the appeal and frustrate appellate review. N.C. R. App. P. 9(a)ās various
subparts collectively provide that the record must include all pleadings, documents,
and evidence necessary to dispose of the appeal, which may include the trial
transcript if designated by the appellant. Here, Respondent designated the use of the
trial transcript and relies on the testimony in said transcript for the arguments
presented in her brief. But Respondentās counsel ultimately failed to file the
transcript with this Courtāeven after the error was pointed out by the Trustee in his
motion to dismissāas is required by N.C. R. App. P. 7 and 9(c)(3)b. Presuming
underlying merit to Respondentās contention that the evidence below does not show
that the current Sanford Financial, LLC is the actual holder of the note being
foreclosed upon, her counselās failure to file the transcript and include all evidence
presented to the trial court in the printed record on appeal renders this Court unable
to conclusively review the issue. That failure also frustrates the ability of the Trustee
to respond to those arguments with citations to the record evidence and transcript.
These non-jurisdictional violations impair our appellate function and the adversarial
process. When coupled with Respondentās other numerous violations of the appellate
rules, this violation rises to the level of gross and substantial non-jurisdictional
defects to warrant dismissal. Dogwood, 362 N.C. at 199-200,657 S.E.2d at 366-67
.
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Ā¶ 26 Respondentās counselās responses to these alleged non-jurisdictional rule
violations do not dissuade us from holding dismissal to be appropriate here. He first
argues that the Trusteeās motion to dismiss should not be granted because it does not
include an affidavit or certified docket entries as required by N. C. R. App. P. 25(a).
This argument misses the mark because the Trusteeās motion arises under N.C. R.
App P. 25(b), which imposes no such requirement for a motion to dismiss an appeal
for appellate rule violations.
Ā¶ 27 Counselās remaining arguments are equally unavailing. Several of them rely
on exhibits and attachments, which are missing from the filed responses. Counsel
asserts that his non-licensed assistant is responsible for several rule violations, but
he, as counsel of record and not his paralegal, is responsible for the preparation,
signing, service, and filing of materials with this Court under the North Carolina
Rules of Appellate Procedure. See, e.g., N.C. R. App. P. 3(d) (requiring a notice of
appeal to be āsigned by counsel of record . . . or by any such party not represented by
counsel of recordā). His related claim that the Trustee shares some blame or fault for
the inadequate record on appeal is likewise misplaced, as the appellant āb[ears] the
burden of proceeding and of ensuring that the record on appeal and verbatim
transcript [is] complete, properly settled, in correct form, and filed with the
appropriate appellate court by the applicable deadlines.ā State v. Berryman, 360 N.C.
209, 217,624 S.E.2d 350, 356
(2006).
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III. CONCLUSION
Ā¶ 28 āThe appellate courts of this state have long and consistently held that the
rules of appellate practice . . . are mandatory and that failure to follow these rules
will subject an appeal to dismissal.ā Steingress v. Steingress, 350 N.C. 64, 65,511 S.E.2d 298, 299
(1999) (citations omitted). Here, Respondentās counsel failed to abide
by many of our rules, both jurisdictional and non-jurisdictional. Even when any
jurisdictional failures are set aside, the remaining rule violations are numerous,
impair appellate review, and frustrate the adversarial process. Dismissal of the
appeal is proper under these circumstances. Dogwood, 362 N.C. at 200,657 S.E.2d at 367
. We grant the Trusteeās motion to dismiss Respondentās appeal pursuant to
N.C. R. App. P. 25(b). We dismiss the remaining motions as moot.
DISMISSED
Judges TYSON and COLLINS concur.