112 N.C. App. 614 | N.C. Ct. App. | 1993
In his first assignment of error, Mr. Brown contends the district court erred in making findings of fact which were “irrelevant and without substantial evidence in the record to support them.” We disagree. Pursuant to Rule 11, the signer makes three certifications.
The trial court’s decision to impose or not to impose mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a) is reviewable de novo as a legal issue. 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. If the appellate court makes these three determinations in the affirmative, it must uphold the trial court’s decision to impose or deny the imposition of mandatory sanctions under N.C.G.S. § 1A-1, Rule 11(a).
Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989).
The trial court’s order contains fifteen evidentiary findings of fact and two ultimate findings of fact, all of which amply support the court’s findings. In particular, the evidence supports a finding that Mr. Brown’s complaint failed the legal and factual certification demanded by Rule 11. In addition, it is clear that Mr. Brown filed the complaint to harass Mrs. Brown and needlessly increase the costs of litigation. Senseless litigation initiated by Mr. Brown has persisted since the parties’ separation in 1986. While Mr. Brown claims the litigation is part and parcel of his attempts to increase visitation privileges with his son, he has done nothing constructive to further that objective. Testimony indicated that he has spent $20,000 trying to recover $10,000 in attorney’s fees.
Mr. Brown also argues that the trial court erred in imposing the $15,000 sanction. We disagree. In Turner, the Court stated “in reviewing the appropriateness of the particular sanction imposed, an ‘abuse of discretion’ standard is proper.” Id. This Court has also stated that “this standard is intended to give great leeway to the trial court and a clear abuse of discretion must be shown.” Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 264, 390 S.E.2d 730, 737, disc. review denied, 327 N.C. 137, 394 S.E.2d 169 (1990). The trial court considered evidence of fees incurred by Mrs. Brown, along with Mr. Brown’s conduct throughout the
Mrs. Brown has also presented two cross-assignments of error for our review. In her first cross-assignment of error, Mrs. Brown contends the court erred at the hearing in arbitrarily limiting evidence that would have further supported the order. In light of our decision to affirm the court’s order, it is unnecessary to address this cross-assignment. In her second cross-assignment of error, Mrs. Brown contends the court erred in failing to issue sanctions against Mr. Brown’s attorney as well. We note that Mrs. Brown did not appeal from the order. This challenge is not properly raised by cross-assignments of error under Rule 10(d) of the Rules of Appellate Procedure as that rule is reserved for errors which deprived the appellee of an alternative basis in law to support the judgment. This cross-assignment of error is more properly the subject of a cross-appeal. Mrs. Brown did not appeal, therefore this argument is not before the court.
Finally, we conclude that Mr. Brown brought this appeal for an improper purpose and that it represents yet another attempt to harass Mrs. Brown and needlessly increase costs in this senseless, protracted litigation. Furthermore, this appeal is not well grounded in fact, nor is it warranted by existing law. Accordingly, we remand this case to the district court for a sanctions hearing against Mr. Brown pursuant to Rule 34 of our appellate rules. We strongly encourage the trial court to compensate Mrs. Brown for any expenses incurred in defending against this frivolous appeal, in addition to imposing a sanction the trial court feels is appropriate to deter future abuses by Mr. Brown. We note that this hearing should encompass both this appeal and its companion appeal, No. 9218DC1019.
Accordingly, the order of the.trial court is affirmed and this case is remanded for a hearing pursuant to Rule 34 of the appellate rules.
Affirmed and remanded.
