Brooks v. Gooden , 69 N.C. App. 701 ( 1984 )

318 S.E.2d 348 (1984)

John C. BROOKS, Commissioner of Labor of the State of North Carolina
v.
John Alexander GOODEN and Ward Lumber Company.

No. 8313DC781.

Court of Appeals of North Carolina.

August 7, 1984.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen., Tiare B. Smiley, Raleigh, for petitioner-appellee.

McCarty, Wilson, Rader & Mash by Robert E. Rader, Jr., Ennis, Tex., pro hac vice; Saccomanno, Clegg, Martin & Kipple by Lynn L. Laughlin, Houston, Tex., and Hester, Hester & Johnson by W. Leslie Johnson, Jr., Elizabethtown, for respondent-appellant Ward Lumber Company.

EAGLES, Judge.

Respondent Ward contends that "[t]his case poses simple but profoundly important constitutional questions." We note, however, that jurisdictional restrictions limit our consideration to the issues of whether respondents' motions to stay the district court proceedings and for a continuance were properly denied and whether the trial court correctly found respondent in civil contempt for failure to comply with the administrative inspection warrant.

I

The record on appeal and the transcript of the show cause hearing affirmatively disclose that appeal was taken only from the trial court's judgment finding respondent Ward Lumber Company in contempt, announced in open court. The notice of appeal from the judgment, given orally in open court, is the only notice of appeal that appears in the record or transcript.

a.

From the record, it appears that the trial court entered a written order on 18 May 1983, nunc pro tunc to 14 March 1983, dismissing respondents' counterclaim. It is in their counterclaim that respondents raised the issues of constitutionality. In the same written order, the court denied respondents' "Motion for Reconsideration," which does not appear in the record. This order, even though entered nunc pro tunc to 14 March 1983, nevertheless was entered out of session, which required respondent Ward to give notice of appeal in accordance with Appellate Rule 3(b). Rule 3(b) requires that appeals from judgments or orders rendered out of session must be taken by filing written notice of appeal with the clerk of superior court with service upon all parties. Rule 3(c) requires that the written notice must be given within ten days of the entry of the contested judgment or order. Rule 3(d) requires that the written notice "shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record." G.S. 1-279 prescribes the procedure for taking an appeal in essentially the same manner and language. See Giannitrapani v. Duke Univ., 30 N.C.App. 667, 228 S.E.2d 46 (1976). For purposes of determining when notice of appeal must be given, the court's announcement of its decision in open court constitutes entry of judgment even if a formal written order is not filed until a later date. In re Moore, 306 N.C. 394, 293 S.E.2d 127 (1982), appeal dismissed sub nom., Moore v. Guilford County, 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987 (1983); G.S. 1A-1, Rule 58.

Appeal from a judgment may also be taken by "giving oral notice of appeal at trial," App.R. 3(a)(1); G.S. 1-279(a)(1), but an appeal so taken is by its nature limited to the issues dealt with in the judgment announced and cannot apply to subsequent written orders determining other issues in the same case. See McCall v. Kendrick, 2 Utah 2d 364, 274 P.2d 962 (1954) (appeal taken from judgment does not apply to subsequent award of attorney fees). See generally, 4A C.J.S. Appeal and Review §§ 576, 593(3), 594(4); N.C.App.R. 3, commentary (N.C.Rules of Court, 1984).

b.

With the above principles in mind, we hold that judgment in this case was entered on 18 February 1983 and that Ward's oral notice of appeal given at that time simply does not encompass the subsequent order dismissing the counterclaim, entered nearly three months later. This defect is not cured either by the entry of that order nunc pro tunc to 14 March 1983, the date on which the written judgment was entered, or by the court's order, entered 18 April 1983, setting 14 March 1983 as the date from which the time for preparing the record on appeal was to run.

We cannot infer from Ward's oral notice of appeal from the contempt judgment an intent to appeal the dismissal of the counterclaim. See Smith v. Insurance Co., 43 N.C.App. 269, 258 S.E.2d 864 (1979) (liberal construction of rules governing written notice of appeal). First, the judgment appealed from was limited to the issue of contempt and did not dispose of the counterclaim; second, a counterclaim is in the nature of an independent proceeding and is not automatically determined by a ruling in the principal claim, see G.S. 1A-1, Rule 13; third, the issues raised in the counterclaim, which by Ward's own admission are important constitutional issues, are not so intertwined with the narrow issues involved in the civil contempt proceeding that an appeal taken from judgment in one is notice of intent to appeal from a subsequent ruling in the other. See generally, 9 Moore's Federal Practice, § 203.18 (2d ed. 1983). Ward's unsupported assertion that the court's judgment of contempt ipso facto disposed of the counterclaim and related discovery requests is incorrect and overlooks the significance of failing to take an appeal in compliance with applicable rules and statutes. Without proper notice of appeal, this Court acquires no jurisdiction. Oliver v. Williams, 266 N.C. 601, 146 S.E.2d 648 (1966); Smith v. Smith, 43 N.C. App. 338, 258 S.E.2d 833 (1979), disc. rev. denied, 299 N.C. 122, 262 S.E.2d 6 (1980); O'Neill v. Southern National Bank, 40 N.C.App. 227, 252 S.E.2d 231 (1979). Accordingly, we must dismiss Ward's purported appeal from the dismissal of the counterclaim for lack of jurisdiction. Id. Our consideration of the constitutional issues sought to be raised is foreclosed.

II

Ward assigns as error the court's denial of its request for discovery which, we assume, refers to the court's quashing of respondents' subpoena duces tecum. However, respondent Ward failed to note an exception in the record. Further, respondents failed to object to the ruling at trial although it came after oral notice of appeal was given. Even if we assume then that the oral notice of appeal encompasses the quashing of the subpoena duces tecum, Ward's failure to note an exception in the record or transcript precludes our consideration of the assignment of error and related argument. State v. Kidd, 60 N.C.App. 140, 298 S.E.2d 406 (1982), disc. rev. denied, 307 N.C. 700, 301 S.E.2d 393 (1983).

III

In a matter that is properly before us, respondent Ward contends that the district court erred in refusing to stay its proceedings, thereby not allowing the superior court to consider the requested transfer. A few hours before filing their counterclaim, respondents filed a motion to transfer the entire controversy to superior court on the basis that the counterclaim requested relief of a nature that conferred jurisdiction on the superior court. G.S. 7A-245 provides that the superior court is the proper division for trial of civil actions where, as in the counterclaim, the principal relief requested is:

(1) Injunctive relief against the enforcement of any statute, ordinance, or regulation;

(2) ...

(3) Declaratory relief to establish or disestablish the validity of any statute, ordinance, or regulation; or

(4) The enforcement or declaration of any claim of constitutional right.

However, G.S. 7A-245(b) provides:

(b) When a case is otherwise properly in the district court division, a prayer for injunctive or declaratory relief by any party not a plaintiff on grounds stated in this section is not ground for transfer.

Since the relief asserted by respondents as grounds for the transfer was sought in a counterclaim and since a respondent's status in a contempt proceeding is comparable to that of a defendant in a civil action, under G.S. 7A-245(a) the superior court was not the proper division for consideration of this action and there were no grounds for transfer. Since the matter was properly in district court, respondents were not entitled under G.S. 7A-258(a) to move for a transfer to superior court. Thus, the prohibition contained in G.S. 7A-258(f)(1), against involuntary dismissal of an action in which a motion to transfer is pending, could not apply here to prohibit the dismissal by the court of respondent's counterclaim. Respondent Ward's contention is without merit.

Because the matter was properly in district court, we hold that the denial of respondents' oral motion for a continuance was not an abuse of discretion.

IV

Respondent Ward has neglected to address the sole substantive issue that is properly presented by his appeal: whether the judgment of the trial court finding Ward Lumber Company in civil contempt of court was correct.

In their answer to the contempt petition, respondents asserted the unconstitutionality of the statute and the inspection plan and the invalidity of the inspection warrant. Respondents presented no evidence at the hearing, only moving to strike the testimony of the State's witness and to dismiss the action because of the alleged unconstitutionality of the law and because OSH "in every respect failed to meet its obligation under the law." Respondents offered no proof in support of the allegations of unconstitutionality. On appeal, Ward does not dispute the facts found by the court or even argue that they do not support the judgment of contempt. Under our rules of Appellate Procedure, failure to present arguments on questions raised by assignments of error in an appeal from a trial court constitutes abandonment of those assignments of error. App.R. 28(a). Nevertheless, we have carefully considered the trial court's judgment and hold that it was correct.

On appeal from judgments of civil contempt, our review is limited to the questions of whether the trial court's findings of fact are supported by any competent evidence in the record, Peoples v. Peoples, 8 N.C.App. 136, 174 S.E.2d 2 (1970), and whether the findings of fact warrant the judgment. Willis v. Willis, 2 N.C.App. 219, 162 S.E.2d 592 (1968). The facts found by the trial court are amply supported in the record in the form of testimony at the hearing and the search warrant and supporting affidavit. The court concluded from these facts, inter alia, that respondent had wilfully refused to submit to the inspection warrant and that it had shown no legal cause for that refusal. The court's judgment is supported by its findings and conclusions and must be affirmed.

Affirmed.

VAUGHN, C.J., and BRASWELL, J., concur.

VAUGHN, Chief Judge, concurring:

I would consider the matters respondent attempts to raise on their merits. I would then find that the order of the trial court is in all respects correct and that respondent's arguments are totally lacking in merit.