Plasman v. Decca Furniture (Usa), Inc.

Plasman v. Decca Furniture (USA), Inc., 2016 NCBC 48.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
CATAWBA COUNTY 12 CVS 2832

CHRISTIAN G. PLASMAN, in his
individual capacity and derivatively for
the benefit of, on behalf of and right of
nominal party BOLIER & COMPANY,
LLC,

Plaintiff,

v.

DECCA FURNITURE (USA), INC.,
DECCA CONTRACT FURNITURE,
LLC, RICHARD HERBST, WAI THENG
TIN, TSANG C. HUNG, DECCA
FURNITURE, LTD., DECCA ORDER ON DEFENDANTS’ MOTION
HOSPITALITY FURNISHINGS, LLC,
TO DISMISS PORTIONS OF APPEAL
DONGGUAN DECCA FURNITURE CO.
LTD., DARREN HUDGINS, DECCA THAT ARE UNTIMELY
HOME, LLC, and ELAN BY DECCA,
LLC,

Defendants,

and BOLIER & COMPANY, LLC,

Nominal Defendant,

v.

CHRISTIAN J. PLASMAN a/k/a
BARRETT PLASMAN,

Third-Party
Defendant.

{1} THIS MATTER is before the Court upon Defendants Decca Furniture
(USA), Inc., Decca Contract Furniture, LLC, Decca Hospitality Furnishings, LLC,
Decca Home, Elan by Decca, LLC, Richard Herbst, Darren Hudgins, Wai Theng
Tin, and nominal defendant Bolier & Company, LLC’s (collectively, “Defendants”)
Motion to Dismiss Portions of Appeal that Are Untimely (the “Motion”) in the
above-captioned case. Pursuant to Business Court Rule 15.4, the Court considers
the Motion on the briefs, without hearing or oral argument. Having considered the
Motion, the briefs in support of and in opposition to the Motion, and the matters of
record reflected in the Court’s docket, the Court GRANTS in part and DENIES in
part the Motion as explained below.
Law Offices of Matthew K. Rogers, PLLC, by Matthew K. Rogers, for
Plaintiff Christian G. Plasman, and Third-Party Defendant Christian
J. Plasman a/k/a Barrett Plasman.

McGuireWoods LLP, by Robert A. Muckenfuss, Jodie H. Lawson,
Andrew D. Atkins, and Elizabeth Zwickert Timmermans, for
Defendants Decca Furniture (USA), Inc., Decca Contract Furniture,
LLC, Richard Herbst, Wai Theng Tin, Tsang C. Hung, Decca
Furniture, Ltd., Decca Hospitality Furnishings, LLC, Dongguan Decca
Furniture Co. Ltd., Darren Hudgins, Decca Home, LLC, Elan by Decca,
LLC, and Nominal Defendant Bolier & Company, LLC.
Bledsoe, Judge.
I.

BACKGROUND AND PROCEDURAL HISTORY

{2} On February 26, 2016, the Court entered a civil contempt order (the
“Contempt Order”) finding Plaintiff Christian G. Plasman (“Plaintiff” or “Chris
Plasman”) and Third-Party Defendant Christian J. Plasman a/k/a Barrett Plasman
(“Barrett Plasman”) (together with Chris Plasman, the “Plasmans”) in civil
contempt of court for willfully violating this Court’s May 26, 2015 Order and
Opinion (the “May 26 Order”).1 The Plasmans filed a Notice of Appeal on March 24,
2016, twenty-seven days after the Court entered the Contempt Order.
{3} The Plasmans’ Notice of Appeal specifically seeks to appeal seven of the
Court’s orders:
a. The February 4, 2015 Order and Notice of Hearing (the “February 4
Order”);

1 The Contempt Order and the May 26 Order each provide further factual and procedural details of

this case. The May 26 Order is reported at Bolier & Co., LLC v. Decca Furniture (USA), Inc., 2015
NCBC LEXIS 55 (N.C. Super. Ct. May 26, 2015). The Contempt Order is reported at Plasman v.
Decca Furniture (USA), Inc., 2016 NCBC LEXIS 20 (N.C. Super. Ct. Feb. 26, 2016).
b. The August 25, 2015 Order and Opinion on Stay Pending Appeal (the
“August 25 Order”);
c. The October 2, 2015 Amended Order and Opinion on Stay Pending
Appeal (the “Order Amending the August 25 Order”);
d. The October 26, 2015 Order and Opinion on the Plasmans’ Motion to
Clarify August 25, 2015 Order (the “Order Clarifying the August 25
Order”);
e. The January 5, 2016 Show Cause Order and Notice of Hearing (the
“Show Cause Order”);
f. The January 27, 2016 Order on Plaintiff’s and Third Party Defendant’s
Objection to Show Cause Production, Notice of Conditional Intent to
Comply with Show Cause, and Request for Clarification (the
“Clarification of the Show Cause Order”) (collectively, the orders
identified in subparts (a) through (f) of this paragraph shall be referred
to as the “Challenged Orders”); and
g. The Contempt Order.
{4} As stated in their response brief, Defendants move the Court to dismiss
the appeal of the Challenged Orders as untimely pursuant to North Carolina Rule
of Appellate Procedure 3. Defendants do not seek to dismiss the appeal of the
Contempt Order. The Plasmans argue in response that the Court lacks the
authority to dismiss the present appeal and that their appeal is nevertheless proper
under N.C. Gen. Stat. § 1-278.
II.
ANALYSIS
{5} Under Rule 3 of the North Carolina Rules of Appellate Procedure, a “party
entitled by law to appeal from a judgment or order of a superior or district court
rendered in a civil action” must file its notice of appeal within thirty days after
entry of judgment. N.C. R. App. P. 3(a), (c). All of the Challenged Orders were
entered more than thirty days before the Plasmans filed their March 24, 2016
Notice of Appeal. In fact, the most recent of the Challenged Orders was entered on
January 27, 2016, fifty-seven days before the Notice of Appeal was filed. Therefore,
the Challenged Orders are untimely pursuant to Appellate Rule 3.
{6} Appellate Rule 25 grants the trial court jurisdiction, upon motion and
“prior to the filing of an appeal in an appellate court,” to dismiss an appeal if a
party “after giving notice of appeal . . . shall fail within the times allowed by these
rules or by order of court to take any action required to present the appeal for
decision.” N.C. R. App. P. 25(a). “Filing of an appeal in an appellate court” means
docketing of the appeal, which occurs when the appellant files the record on appeal
with the clerk of the appellate court and pays the docket fee or proceeds in forma
pauperis. See Carter v. Clements Walker, PLLC, 2014 NCBC LEXIS 12, at *7–8
(N.C. Super. Ct. Apr. 30, 2014) (collecting cases and interpreting N.C. R. App. P.
122). The Court of Appeals has specifically construed Rule 25 to “allow[] the trial
court to dismiss an appeal if the appellant failed to give notice of appeal within the
time allowed by the Appellate Rules,” including Rule 3(c). Landingham Plumbing &
Heating, Inc. v. Funnell, 102 N.C. App. 814, 815, 403 S.E.2d 604, 604–05 (1991).
{7} The Plasmans acknowledge in their response brief that they have not yet
filed the record on appeal with the clerk of the appellate court. (Plasman Resp.
Opp. Mot. Dismiss Appeal 4.) On July 1, 2016, the Court, upon the Plasmans’
motion, granted the Plasmans an extension of time through July 15, 2016 to settle
the record on appeal, and the Court’s review of the Court of Appeals’ public
electronic docket indicates that the record on appeal has not been tendered as of the
date of this Order and Opinion. Therefore, the Court concludes that the Plasmans
have not docketed their appeal, and the Court retains jurisdiction to consider
Defendants’ Motion under Appellate Rule 25(a). Because the Plasmans failed to
give notice of appeal of the Challenged Orders within the thirty-day period provided
in Appellate Rule 3(c), the Court has the authority to dismiss the appeal of each of
the Challenged Orders.

2 Appellate Rule 12(a) concerns the time for filing the record on appeal; Appellate Rule 12(b) sets
forth the steps required to docket the appeal.
{8} This Court has previously stated that “the trial court is held to a strict
construction of Appellate Rule 3.” Ehrenhaus v. Baker, 2014 NCBC LEXIS 30, at
*10 (N.C. Super. Ct. July 16, 2014), cert. denied and appeal dismissed, 776 S.E.2d
699 (N.C. Ct. App. 2015). The trial court must apply Rule 3 strictly because “Rule 3
is a jurisdictional rule” and “a party’s compliance with Rule 3 is necessary to
establish appellate jurisdiction.” Am. Mech., Inc. v. Bostic, 782 S.E.2d 344, 350
(N.C. Ct. App. 2016). In American Mechanical, the Court of Appeals affirmed this
Court’s dismissal of the plaintiffs’ appeals for failure to comply with Appellate Rule
3. Id. In so ruling, the Court of Appeals relied on North Carolina Supreme Court
precedent explaining that “a jurisdictional rule violation [of the North Carolina
Rules of Appellate Procedure] . . . ‘precludes the appellate court from acting in any
manner other than to dismiss the appeal.’” Id. (quoting Dogwood Dev. & Mgmt. Co.
v. White Oak Transp. Co., 362 N.C. 191, 197, 657 S.E.2d 361, 362–63 (2008)).
Therefore, the Court concludes that the Challenged Orders are generally subject to
dismissal under Appellate Rules 3 and 25.
{9} Despite the above, the Plasmans argue that its attempt to appeal the
Challenged Orders is not untimely because the Challenged Orders were non-
appealable interlocutory orders, which they contend are now appropriately noticed
for appeal. The statute allowing for the appeal of interlocutory orders provides that
“[u]pon an appeal from a judgment, the court may review an intermediate order
involving the merits and necessarily affecting the judgment.” N.C. Gen. Stat. § 1-
278. Review under N.C. Gen. Stat. § 1-278 “is proper under the following
conditions: (1) the appellant must have timely objected to the order; (2) the order
must be interlocutory and not immediately appealable; and (3) the order must have
involved the merits and necessarily affected the judgment.” Brooks v. Wal-Mart
Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000) (quotation omitted).
{10} Defendants challenge the applicability of section 1-278 only on the ground
that the Challenged Orders do not involve the merits or affect the judgment. An
order involves the merits and affects the judgment if it “deprives the appellant of
one of the appellant’s substantive legal claims.” Yorke v. Novant Health, Inc., 192
N.C. App. 340, 348, 666 S.E.2d 127, 133 (2008). The Court of Appeals has also
stated that an order that “substantially decide[s] the primary issues in contention”
involves the merits and necessarily affects the judgment. Tinajero v. Balfour Beatty
Infrastructure, Inc., 233 N.C. App. 748, 758, 758 S.E.2d 169, 176 (2014).
{11} The Court agrees that several of the Challenged Orders do not involve the
merits and do not necessarily affect the Court’s Contempt Order. The February 4
Order does not involve the merits because it decided unrelated motions prior to both
the May 26 Order and the Contempt Order.
{12} Likewise, the August 25 Order, the Order Amending the August 25 Order,
and the Order Clarifying the August 25 Order do not involve the merits or
necessarily affect the Contempt Order. The August 25 Order and the two related
orders addressed the question of whether this action should proceed or be stayed
following the Plasmans’ appeal of the May 26 Order. The merits of those orders
involved jurisdictional questions rather than whether the Plasmans were in willful
violation of the May 26 Order. The Plasmans’ appeal of the May 26 Order does not
necessarily mean, as the Plasmans argue, that every substantive order issued by
this Court between the May 26 Order and the Contempt Order involves the merits
and affects the Contempt Order. See, e.g., Beall v. Beall, 290 N.C. 669, 680, 228
S.E.2d 407, 413–14 (1976) (quoting Joyner v. Joyner, 256 N.C. 588, 591, 124 S.E.2d
724, 727 (1962)) (“[T]aking an appeal does not authorize a violation of the order.”).
{13} The Show Cause Order and the Clarification of the Show Cause Order, on
the other hand, arguably involve the merits of and affect the Contempt Order. The
Show Cause Order was necessary to the Court’s finding of civil contempt. N.C. Gen.
Stat. § 5A-23(a) (“Proceedings for civil contempt are . . . by the order of a judicial
official directing the alleged contemnor to appear at a specified reasonable time and
show cause why he should not be held in civil contempt.”) Furthermore, because
the Show Cause Order and the Clarification of the Show Cause Order deal with the
facts underlying the Court’s finding of contempt and the procedure employed by the
Court in holding the Plasmans in contempt, those intermediate orders are more
logically reviewed together with the Contempt Order than as part of an appeal of a
final judgment in this action. For those reasons, the Court declines to conclude that
those motions are not reviewable under N.C. Gen. Stat. § 1-278.
III.
CONCLUSION
{14} For the foregoing reasons, the Court hereby GRANTS in part and DENIES
in part the Motion:
a. The Motion is GRANTED, and the Plasmans’ appeal of the following
orders is hereby DISMISSED:
i. The February 4, 2015 Order and Notice of Hearing;
ii. The August 25, 2015 Order and Opinion on Stay Pending
Appeal;
iii. The October 2, 2015 Amended Order and Opinion on Stay
Pending Appeal; and
iv. The October 26, 2015 Order and Opinion on the Plasmans’
Motion to Clarify August 25, 2015 Order.
b. Except as provided above, the Motion is DENIED, and the Court
declines to dismiss the Plasmans’ appeal of the following orders:
i. The January 5, 2016 Show Cause Order and Notice of Hearing;
and
ii. The January 27, 2016 Order on Plaintiff’s and Third Party
Defendant’s Objection to Show Cause Production, Notice of
Conditional Intent to Comply with Show Cause, and Request for
Clarification.
SO ORDERED, this the 7th day of July, 2016.

/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Special Superior Court Judge
for Complex Business Cases