Dunn v. Canoy

CALABRIA, Judge,

concurring in part and dissenting in part.

I concur with the majority opinion in parts I through III. I respectfully dissent on the issue of whether additional findings were required to support the amount of a punitive sanction.

This Court reviews an order imposing a Rule 11 sanction de novo. Turner v. Duke Univ., 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989): Specifically, we 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 sufficient evidence. Id. After this Court determines a Rule 11 sanction was properly imposed, then the amount of the sanction is reviewed for an abuse of discretion. Id., 325 N.C. at 165, 381 S.E.2d at 714. “Under the abuse-of-discretion standard, we review to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.” Mark Group Int’l, Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002).

Specific findings of fact are required for this Court to conduct a de novo review of the imposition of sanctions. However, the trial court is not required to make additional findings regarding the amount of the properly imposed sanction.

The majority quotes Spicer v. Spicer, 168 N.C. App. 283, 607 S.E.2d 678 (2005), to support its contention that findings of fact must be made regarding the monetary amount of a sanction. However, the majority’s reliance upon Spicer is misplaced. The majority opines that *52Spicer held that “even under an abuse of discretion standard, ‘the trial court must, however, make sufficient findings of fact and conclusions of law to allow the reviewing court to determine whether a judgment, and the legal conclusions that underlie it, represent a correct application of the law.’ ” Upon a thorough reading of Spicer, it is clear that the above quoted language applied only to the review of a child support order which deviated from the guidelines for further findings about the child’s specific needs. See Spicer, 168 N.C. App. at 287, 607 S.E.2d at 682. There is no indication that the language quoted by the majority bears directly or indirectly upon the imposition of sanctions.

I also disagree with the majority’s reliance upon Davis v. Wrenn, 121 N.C. App. 156, 464 S.E.2d 708 (1995), cert. denied, 343 N.C. 305, 472 S.E.2d 69 (1996). In Davis, the trial court failed to make findings of fact supporting an imposition of a sanction based upon the plaintiff’s alleged Rule 11 violations. Id., 121 N.C. App. at 160, 464 S.E.2d at 711. This Court remanded the case to the trial court for findings of fact to support imposing a Rule 11 sanction. In so doing, this Court also noted that the trial court failed to make findings regarding the amount of attorney’s fees. Id. However, Davis did not specifically hold that findings of fact must be made regarding the amount of an imposed sanction regardless of the nature of the sanction.

The court in the case before us ordered a purely punitive sanction to defray the Estate of Myrtle Greeson Canoy’s expenses and attorney’s fees. Unlike the award of attorney’s fees in Davis, the sanction in this case was imposed to “punish Mr. Ballinger for his misconduct.” As such, no findings were necessary to determine the attorney’s time and labor expended, skill required, customary fee for like work, and experience or ability.

Our courts have previously upheld a punitive sanction without requiring specific findings of fact as to the amount of the sanction. Davis Lake Community Ass’n v. Feldmann, 138 N.C. App. 322, 323, 530 S.E.2d 870, 871 (2000) (trial court’s sanction of $400.00 for rule violations upheld with no mention of requiring findings of fact as to the amount); Oglesby v. S.E. Nichols, Inc., 101 N.C. App. 676, 681, 401 S.E.2d 92, 95 (1991) (trial court’s sanction of $500.00 to pay “to the clerk of superior court for the use and benefit of defendant’s counsel” upheld with no analysis regarding the findings of fact). The majority distinguishes Davis Lake Community and Oglesby by calling the sanctions “modest sanctions.” However, in these cases, the court had *53discretion to determine whether a “modest sanction” or any sanction was warranted.

In Ward v. Lyall, 125 N.C. App. 732, 482 S.E.2d 740 (1997), we examined the appropriateness of a purely punitive monetary sanction of $8,500.00 imposed for not only Rule 11 violations but also failing to promptly serve a summons and complaint. We held that failure to promptly serve a complaint and summons was not a violation within the scope of Rule 11, and the trial court’s imposition of sanctions, which included these violations, was not properly imposed. Id., 125 N.C. App. at 735, 482 S.E.2d at 742. Remand was necessary to separate a proper sanction from an improper sanction. We reasoned:

The trial court’s order states that it arrived at the appropriate monetary sanction imposed upon plaintiff by generally considering, inter alia, the severity of the violations and the amount necessary to deter further misconduct. Since the trial court did not impose separate sanctions for each type of misconduct, it is impossible for us to determine how much of the $8,500.00 in monetary sanctions stemmed from the trial court’s improper sanctioning of plaintiff for his actions in serving the summons and complaint. For this reason, we remand this matter to the trial court for a new hearing to determine the appropriate amount of sanctions to be imposed under Rule 11.

Id., 125 N.C. App. at 735, 482 S.E.2d at 742-43.

In the case before us, the majority has determined that the order contained adequate findings of fact to support the imposition of sanctions. Specifically, the trial court found that Ballinger did not obtain the consent of the parties before mailing letters along with an unsolicited draft of the consent judgment to the judge. Also, Ballinger wrote additional letters to the court refusing to sign the consent judgment prepared by Mr. Dunn. In the letters, Mr. Ballinger also attempted to readdress issues that had been resolved in open court when his clients gave their consent to the settlement. Ballinger again mailed a letter in which he refused to sign any consent agreement. During a 16 September 2004 hearing, Ballinger stated that he had not “at any time refused to consent to the judgment and will sign the thing today.” Ballinger then proceeded to sign the consent order on behalf of his clients, but withdrew his signature when he was informed by the court that signing the order would create a conflict of interest between him and his clients.

*54The trial court’s findings of fact demonstrate the severity of Ballinger’s rule violations and these same findings are sufficient to support a finding that the sanction in this case wás properly imposed. Additionally, the trial judge explained in his order his reason for imposing a $5,000.00 sanction.

The Court has considered the full panoply of options available to it in considering whether to impose sanctions against Mr. Ballinger, including the lesser sanctions of reprimand or censure, and running to more severe sanctions such as the suspension of Mr. Ballinger’s law license or substantial monetary penalties of up to $10,000. The Court concludes, in its discretion, that a monetary sanction of $5,000 is appropriate under Rule 11 and the Court’s inherent authority over proceedings to punish Mr. Ballinger for his misconduct....

The findings made by the trial court and the reasoning in support of imposing a sanction are not manifestly unsupported by reason or so arbitrary that they could not have been the result of a reasoned decision. On the contrary, the trial court’s reasoning is sufficient to allow us to determine that sufficient findings of fact support the sanction imposed.

Since I believe the majority’s decision requiring the court to make specific findings of fact as to the amount of a punitive sanction is not required by our statutes or case láw, I respectfully dissent on this issue.