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LLC v. Five D Contractors, Inc.

Court of Appeals of North Carolina

September 3, 2019

K2HN CONSTRUCTION NC, LLC, Plaintiff,
v.
FIVE D CONTRACTORS, INC. a North Carolina Corporation and BRIAN DALTON an individual, Defendants.

          Heard in the Court of Appeals 8 August 2019.

          Appeal by Plaintiff from summary judgment entered 18 April 2018 by Judge Jesse B. Caldwell III in Mecklenburg County No. 17-CVS-6914 Superior Court.

          Wesley S. White for Plaintiff-Appellant.

          Johnston, Allison & Hord, P.A., by Greg C. Ahlum and Kimberly J. Kirk, for Defendants-Appellees.

          INMAN, JUDGE.

         Plaintiff 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff 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 projects.

         Defendants 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.

         The 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.

         Following 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.

         The parties agreed to contents of the record on appeal via email on 16 January 2019, [1] 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).[2] 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 extended deadline.

         Plaintiff's 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").

         This 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 ...


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