First American Bank of Virginia v. Carley Capital Group , 99 N.C. App. 667 ( 1990 )

EAGLES, Judge.

This appeal presents two issues for review. First, whether Williams’ oral notice of appeal was sufficient to appeal from both the order entered 25 May 1989 and the order entered 16 June 1989. Second, whether the imposition of sanctions under Rule 11 was appropriate in this case. We find that this appeal presents both the 25 May and 16 June 1989 orders for review and that the trial court erred in imposing sanctions on Williams. Therefore, we vacate the 25 May and 16 June 1989 orders.

I. Notice of Appeal.

Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil

action or special proceeding during a session of court may take appeal by . . . [g]iving oral notice of appeal at trial

G.S. 1-279(a)(1) (repealed effective 1 July 1989); App. R. 3(a)(1) (amended 1988, quoted version effective for all orders and judgments entered before 1 July 1989). “It is apparent that a notice of appeal should be deemed sufficient to confer jurisdiction on the appellate court on any issue if, from the content of the notice, it is likely to put an opposing party on guard the issue will be raised[.]” Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 274, 258 S.E.2d 864, 867 (1979). We find that Williams’ notice of appeal was sufficient to put plaintiff on notice that both the 25 May 1989 order determining that sanctions were appropriate and the 16 June 1989 order determining the type and amount of sanction being imposed were being appealed.

The record reflects that Williams made a motion under Rule 59 for reconsideration of the 25 May 1989 order imposing the Rule 11 sanctions and the trial court denied the motion at the June hearing. There the court examined the plaintiffs attorney’s affidavit regarding the amount of time spent preparing a response to the answer and the hourly rate plaintiff’s attorney charged. The following exchange occurred in open court.

The COURT: ... I think what happened, you were confronted with what we all used to be confronted with, a fellow sued on a Note and to get some time you just entered a general denial. Well, Rule 11 doesn’t let lawyers do that anymore and there is a reason for it. The public just got fed up with things like that and the time it takes with useless litigation and so the Legislature, following the rules of the Federal Government[,] adopted Rule 11. And every lawyer has got to make reasonable investigation as to the law and the facts before he files any paper containing any allegation at all. And I don’t want to punish you, but I do want to give a clear signal, and I know lawyers that I don’t expect them to know much better than that, but I’ve got to send a signal to lawyers that I’ve got a great deal of respect for. I’m sorry you turned out to be the one.

I find that the labor occasioned by the violation of Rule 11 on the part of [sic] the reasonable time would be ten (10) hours and a reasonable fee of $125.00 an hour and IT IS ORDERED that that be paid to the Plaintiff, Counsel for the Defendant, within thirty (30) days — total sum of $1250.00[] as partial reimbursement for the expense of defending this Motion for Summary Judgment [sic].

Mr. WADE: Your honor, Mr. Williams, through me, would not offend Your Honor if we gave Notice of Appeal, would he?

The COURT: No.

* * *

Mr. WADE: Your Honor, we, on behalf of Mr. Williams do give Notice of Appeal.

Plaintiff does not argue that Williams’ notice of appeal did not put it on notice that Williams was appealing the imposition of Rule 11 sanctions as well as the amount of the sanctions. We find Williams’ notice sufficient to appeal both orders.

Parenthetically, we note that effective for judgments entered on or after 1 July 1989, notice of appeal in civil cases must be in writing and must specify the party or parties appealing, the judgment or order from which appeal is taken and the court to which appeal is taken. App. R. 3(c). The question presented by Williams’ oral notice of appeal is not likely to occur again.

II. Imposition of Sanctions.

G.S. 1A-1, Rule 11(a) provides, in part, that:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

A decision by the trial court to impose or not to impose sanctions under Rule 11 is reviewable de novo by this court. Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).

In the de novo review, the appellate court will determine (1) whether the trial court’s conclusions of law support its judgment or determination, (2) whether the trial court’s conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.

Id. We find insufficient evidence in the record to support the trial court’s findings of fact and therefore vacate the orders entered 25 May and 16 June 1989.

With respect to defendants’ defense of lack of subject matter jurisdiction, the court found that Williams made no attempt to find any legal authority to support the defense. However, the transcript reveals that Williams researched whether public policy of North Carolina would be a defense to the full faith and credit action. Williams was concerned that the amount of interest allowed under the Virginia judgment and the attorney fees allowed there would be contrary to the public policy of North Carolina as expressed in G.S. 6-21.2 (attorney fees not in excess of 15% of outstanding balance) and G.S. 24-1 (interest on judgments at 8%). Williams also found cases in which the court stated that it would not entertain suits from other states that contravene the public policy of North Carolina. Although admittedly none of those cases were factually similar to the case here, the cases were arguably supportive of arguments for the extension of existing law. The trial court’s finding is not supported by a sufficiency of the evidence.

Williams also excepted to the following finding of fact:

With respect to Carley’s 12(b)(2) motion, Mr. Williams admitted under oath that the transaction of business by Carley in, and contacts with Mecklenburg County, was such as to be common knowledge.

Apparently the trial court determined that defendants’ defense of lack of personal jurisdiction was baseless. Williams testified that he asserted the defense of lack of personal jurisdiction based

on the fact that no defendant is a resident of North Carolina. They were not served in North Carolina. They owned property here. There is a case, the Georgia Railroad Bank case, that says owning property in North Carolina is not sufficient. And that’s the case I was looking at at the time. Now, Mr. Parker [plaintiff’s attorney] came along later after I interposed that defense, and said that they’re involved in a great deal more activity than that.

Thereafter the court stated that “[a]nybody who reads the newspaper in this city knows that Carley Capital Group is doing business in the city of Charlotte, don’t they?” The record before us does not support the finding that Williams “admitted under oath” that defendants’ transactions and contacts with Mecklenburg County were common knowledge. The trial court’s finding of an admission is not supported by the evidence.

The trial court also found that Williams had failed to make any investigation to determine whether plaintiff “was subject to the provisions of N.C.G.S. 55454(a) by ‘transacting business’ in North Carolina under G.S. 55431.” Williams testified that he asserted the defense based on his investigation which revealed that plaintiff was not registered with the North Carolina Secretary of State’s office to transact business in North Carolina. Williams testified that from the complaint he inferred that plaintiff loaned money to others and those facts could qualify as “transacting business” in North Carolina. Williams also testified that he planned to question plaintiff during discovery to determine the amount of business, if any, it transacted in North Carolina. We find that Williams’ actions in this regard were sufficient to comply with the statutory requirements of Rule 11.

The trial court also found that:

Mr. Williams did not make any investigation with respect to Carley’s 12(b)(6) motion, and Bank’s Complaint on its face conclusively shows that a claim for relief was stated.

There is no basis in the record for the finding that Williams did not make any investigation to support this defense. From this record it appears that the basis for the Rule 12(b)(6) defense was not inquired into during the June hearing. This finding of fact is not supported by sufficient evidence.

It is clear from the record before us that Williams asserted the various defenses based on three distinct grounds. One has been termed “public policy” by the trial court and the parties. Williams asserted that the interest rate and attorney fees allowed under the Virginia judgment would not be enforced by a North Carolina court because they were in violation of this State’s public policy. Williams also asserted the lack of personal jurisdiction defense on a reasonable factual basis. Finally, Williams asserted a defense based on plaintiff’s failure to register with the Secretary of State’s office. We cannot say that these defenses were so outside the bounds of reasonableness as to warrant sanctions under Rule 11.

Accordingly, the 25 May and 16 June 1989 orders are vacated.

Vacated.

Judge LEWIS concurs.

Judge Greene dissents.