Johnson v. Harris

WALKER, Judge,

concurring.

I concur with the majority opinion which holds that this Court is without jurisdiction to address the appeal of the denial of plaintiffs’ Rule 56(e) motion and that the trial court erred in awarding Rule 11 sanctions against plaintiffs and should be reversed.

“Whether an attorney’s conduct merits Rule 11 sanctions is determined by looking at the totality of the circumstances ..., and is a matter reviewable de novo.” Carter v. Stanly County, 125 N.C. App. 628, 636, 482 S.E.2d 9, 13-14, disc. rev. denied, 346 N.C. 276, 487 S.E.2d 540 (1997) (citations omitted). Because our review is de novo, we only need to look at whether Rule 11 sanctions should be imposed on plaintiffs for filing their Rule 56(g) motion. Rule 11 provides that a motion must be: (1) warranted by existing law or the good faith modification or extension of existing law, (2) well grounded in fact, and (3) made for a proper purpose. Golds v. Central Express, Inc., 142 N.C. App. 664, 668, 544 S.E.2d 23, 27, disc. rev. denied, 353 N.C. 725, 550 S.E.2d 775 (2001). If any one of these does not exist, Rule 11 sanctions are appropriate. Id.

Applying this test here, we first determine whether plaintiffs’ Rule 56(g) motion for sanctions is warranted by existing law or the good faith modification or extension of existing law. N.C. Gen. Stat. § 1A-1, Rule 56(g) allows for the court, if it finds an affidavit is submitted in bad faith or solely for the purpose of delay, to award, expenses, including attorney’s fees, to the opposing party. "While there is limited case law on what constitutes “bad faith” under Rule 56(g), our Supreme Court has approved the use of Rule 56(g) sanctions for “the filing of inappropriate affidavits” in support of summary judgment motions. Brooks v. Giesey, 334 N.C. 303, 319, 432 S.E.2d 339, 348 (1993). Thus, our existing case law or a good faith extension of our case law supports the legal theory that where an affidavit has been submitted in support of summary judgment and was done in bad faith or was inappropriate, Rule 56(g) allows for the recovery of attorney’s fees and expenses.

We next look to see whether plaintiffs’ Rule 56(g) motion was well grounded in fact. Plaintiffs alleged that, in his affidavit, Officer Fuller used the phrase “car frisk” multiple times. Further, in his sworn deposition, he repeatedly denied having ever used the term or of actually knowing its meaning. Officer Fuller also testified under oath that his employer had been the one who prepared the affidavit. The inference is that the signing and filing of the affidavit, prepared by his employer, with terms he did not know, use, or understand, was in bad faith and inappropriate. Thus, we agree with the majority that the Rule 56(g) motion was well grounded in fact.

We finally ask whether the motion was filed for an improper purpose. “[J]ust because a plaintiff is eventually unsuccessful in her claim does not mean the claim was inappropriate or unreasonable.” Grover v. Norris, 137 N.C. App. 487, 495, 529 S.E.2d 231, 235 (2000). “An improper purpose is ‘any purpose other than one to vindicate rights ... or to put claims of right to a proper test.’ ” Brown v. Hurley, 124 N.C. App. 377, 382, 477 S.E.2d 234, 238 (1996) (quoting Mack v. Moore, 107 N.C. App. 87, 93, 418 S.E.2d 685, 689 (1992)). “An objective standard is used to determine the existence of an improper purpose, with the burden on the movant to prove such improper purpose.” Id. As the majority notes, “The record indicates that plaintiffs reasonably believed, based on existing case law, that the appropriate means for seeking attorney’s fees and cost associated with their Rule 56(e) motion to strike Fuller’s affidavit was to move for sanctions pursuant to Rule 56(g).” There has been no showing by defendants that the plaintiffs’ motion for Rule 56(g) sanctions was filed for an improper purpose.

Thus, I concur with the majority in holding that the trial court erred in awarding. Rule 11 sanctions against plaintiffs for the filing of their Rule 56(g) motion.