in the Court of Appeals 8 August 2019.
by Plaintiff from summary judgment entered 18 April 2018 by
Judge Jesse B. Caldwell III in Mecklenburg County No.
17-CVS-6914 Superior Court.
S. White for Plaintiff-Appellant.
Johnston, Allison & Hord, P.A., by Greg C. Ahlum and
Kimberly J. Kirk, for Defendants-Appellees.
K2HN Construction NC, LLC, ("Plaintiff") appeals
from an order granting summary judgment in favor of
Defendants Five D Contractors, Inc. and Brian Dalton
("Defendants"). Defendants seek dismissal of this
appeal for violation of various nonjurisdictional appellate
rules. After careful review, we dismiss the appeal because
Plaintiff, in addition to committing numerous
nonjurisdictional defaults alleged in Defendants' motion
and independently identified by this Court on review,
abandoned its appeal by failing to cite any legal authority
in support of its arguments as mandated by Rule 28(b)(6) of
the North Carolina Rules of Appellate Procedure.
FACTUAL AND PROCEDURAL HISTORY
and Defendants are general contractors. In 2014, the parties
orally agreed to enter into a joint venture to build four
commercial properties in Georgia where, at the time of the
agreement, only Plaintiff was licensed. The agreement
contemplated an even split of all profits realized on the
commenced construction on the projects and Plaintiff provided
its Georgia contractor's license and agents'
signatures on various contracts, permits, and registration
forms connected to the projects. At no point did Plaintiff
provide labor or materials. Its contributions to the projects
consisted only of providing a license number and signatures
and unspecified administrative work that Plaintiff was unable
to describe at deposition.
four projects were eventually completed, but Plaintiff never
received any compensation as contemplated by the joint
venture agreement. Plaintiff filed suit against Defendants on
12 April 2017, alleging claims for breach of contract,
quantum meruit, conversion, fraudulent
misrepresentation, unfair and deceptive trade practices,
piercing the corporate veil, and punitive damages. Defendants
filed their combined motion to dismiss, answer, and
affirmative defenses on 5 September 2017, denying each of
Plaintiff's claims and asserting ten affirmative
defenses. Following discovery, Defendants filed a motion for
summary judgment. That motion was granted by the trial court
by order entered 18 April 2018 after a hearing on 29 March
2018. Plaintiff filed its notice of appeal on 17 May 2018.
service of its notice of appeal on 17 May 2018, Plaintiff
procured a transcript of the proceedings and prepared a
proposed record on appeal. The reporter certified delivery of
the transcript on 30 September 2018, giving Plaintiff until 5
November 2018 to serve a proposed record on Defendants
pursuant to Rule 11 of the North Carolina Rules of Appellate
Procedure. N.C. R. App. P. 11(b) (2018). Plaintiff served a
proposed record on Defendants a day late, on 6 November 2018.
parties agreed to contents of the record on appeal via email
on 16 January 2019,  and it was filed with this Court on 18
January 2019. Plaintiff, however, failed to post the appeal
bond and pay the docketing fee at the time of filing as
required by our appellate rules. N. C. R. App. P. 6(c) and
12(b). This Court sent a letter reminding
Plaintiff of the required appeal bond and docketing fee and
extended the deadline for those payments by ten days, until 8
February 2019. Plaintiff did not post the bond or pay the
required fee until 28 February 2019, 20 days beyond the
filing of the record on appeal on 18 January 2019 also meant
that its principal brief was due to be filed on or before 18
February 2019, i.e., within 30 days as required by
our rules. N.C. R. App. P. 13(a)(1). By 22 February 2019,
Plaintiff still had not filed its brief, and Defendants moved
to dismiss the appeal. Plaintiff responded by arguing that
the time to file its brief had not begun to run because this
Court's clerk had not yet mailed the printed record to
the parties, apparently relying on a superseded version of
the appellate rules. Compare N.C. R. App. P.
13(a)(1) (2018) (requiring the appellant to file its brief
"[w]ithin thirty days after the clerk of the appellate
court has mailed the printed record to the parties")
with N.C. R. App. P. 13(a)(1) (2019) (requiring the
same "[w]ithin thirty days after the record on appeal
has been filed with the appellate court").
Court dismissed-without prejudice-Defendants' first
motion to dismiss on 4 March 2019 and informed Plaintiff of
the applicable version of Rule 13; Plaintiff thereafter filed
a motion for an extension of time to file its principal brief
on 8 March 2019. We allowed that motion in our ...