Lowder v. Lowder, 106 N.C. App. 145 (1992)

April 21, 1992 · North Carolina Court of Appeals · No. 9019SC1309

106 N.C. App. 145

MALCOLM M. LOWDER and wife, PATTY STIWELL LOWDER, Petitioners v. W. HORACE LOWDER and wife, JEANNE R. LOWDER, and LOIS L. HUDSON and husband, BILLY JOE HUDSON, Respondents

No. 9019SC1309

(Filed 21 April 1992)

Appeal and Error § 510 (NCI4th) — ' frivolous appeal — sanctions — show cause order

Respondents’ appeal is frivolous where they have again raised the jurisdiction issue which repeatedly has been rejected by the Court of Appeals, and respondents are directed to show cause in writing as to why this appeal should not be dismissed and why they should not be taxed for all reasonable expenses and costs incurred, including attorney fees and any other appropriate sanctions. Appellate Rules 34(a)(1), (a)(2), (b)(1) and (b)(2); Appellate Rule 35.

Am Jur 2d, Appeal and Error §§ 912, 1024.

Award of damages for dilatory tactics in prosecuting appeal in state court. 91 ALR3d 661.

Appeal by respondents from order entered 15 August 1990 by Judge Howard R. Greeson, Jr. in MONTGOMERY County Superior Court. Heard in the Court of Appeals 17 March 1992.

Real estate belonging to Consolidated Industries, Inc. was conveyed by a receivers’ deed to Malcolm M. Lowder, W. Horace Lowder and Lois Lowder Hudson as tenants in common on 30 December 1988. Petitioners then filed for partition. The trial court appointed commissioners to divide the property. Respondents filed no exceptions and did not appeal either the commissioners’ original or amended report, which the trial court confirmed.

Six weeks later respondents filed a “Motion to Delay Judgment and Hold in Abeyance.” The trial court denied respondents’ motion and imposed sanctions of $700.00 upon them for petitioners’ reasonably incurred fees and expenses in responding to the motion. From the order and judgment denying respondents’ motion and imposing sanctions, respondents appeal.

Moore & Van Allen, by James P. McLoughlin, Jr., for petitioner appellees.

W. Horace Lowder, respondent appellant, pro se.

Lois L. Hudson, respondent appellant, pro se.

ARNOLD, Judge.

This is the twenty-sixth appeal in a series of cases emanating from Malcolm v. All Star Mills, Stanly Co. 79CVS015. In this latest guise, respondents once again have raised the jurisdiction issue which repeatedly has been rejected by this Court. We note nothing new in respondents’ arguments and find this appeal to be frivolous under N.C.R. App. P. 34(a)(1) and (a)(2). Pursuant to Rule 34(d) we direct that within not more than thirty days from the certification of this opinion respondents shall show cause in writing as to why this appeal should not be dismissed and why they should not be taxed for all reasonable expenses and costs incurred, including reasonable attorney fees and any other appropriate sanction. See N.C.R. App. P. 34(b)(1) and (b)(2); N.C.R. App. P. 35.

Remanded.

Judges LEWIS and Wynn concur.