NO.

COAIO-S3S

TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

*******************************

IN THE MATTER OF:

OAK HEALTH CARE INVESTORS OF NORTH CAROLINA, INC., A NORTH CAROLINA CORPORATION d/b/a THE LAURELS OF FOREST GLENN, LAUREL HEALTH CARE COMPANY,

Plaintiffs,

v.

KENNETH C. JOHNSON.

Defendant,

AND

KENNETH C. JOHNSON. )

Plaintiff, )

v. )

) OAK HEALTH CARE INVESTORS OF ) NORTH CAROLINA, INC., A NORTH) CAROLINA CORPORATION d/b/a ) THE LAURELS OF FOREST GLENN, )

LAUREL HEALTH CARE COMPANY, )

SANDRA LYNN WOOD, AND ALAN )

FINLAYSON, )

Defendants, )

-------------------------------)

AND

SUPERIOR COURT DIVISION File No.OS CVS 3411

SUPERIOR COURT DIVISION File No.OB CVS 3715

KENNETH C. JOHNSON, Plaintiff,

v.

OAK HEALTH CARE INVESTORS OF NORTH CAROLINA, INC., A NORTH CAROLINA CORPORATION d/b/a

THE LAURELS OF FOREST GLENN, LAUREL HEALTH CARE COMPANY, YATES, MCLAMB & WEYHER, LLP, BARBARA B. WEYHER, ESQ.,IN HER) PARTNERSHIP, PROFESSIONAL AND INDIVIDUAL CAPACITIES, DAN J. MCLAMB, IN HIS PARTNERSHIP, PROFESSIONAL, AND INDIVIDUAL CAPACITIES, SEAN T. PARTRICK, ESQ, IN HIS, PARTNERSHIP, PROFESSIONAL, AND INDIVIDUAL, CAPACITIES,CHRISTOPHER M.WEST,) IN HIS PARTNERSHIP,PROFESIONAL)

AND INDIVIDUAL CAPACITIES, )

Defendants, )

~~~~~----------~--------)

SUPERIOR COURT DIVISION File No.09 CVS 6918

***************************************************

MOTION FOR RULE 34 SANCTIONS

***************************************************

-111-

INDEX

TABLE OF CASES AND AUTHORITIES

iii

I.

APPELLANT IS PREJUDICED BECAUSE DEFENSE COUNSEL APPEAR AS APPELLEES WITHOUT STANDING AND HAVE ORCHESTRATED TWICE THE NUMBER OF WORDS TO RESPOND.

3

II. THE APPELLEES MISREPRESENT TO THE COURT 5

THAT THE PROVISIONS OF THE PRELIMINARY INJUNCTION ARE CONTROLING, DESPITE ITS CONFLICTING PROVISIONS WITH THE PERMANENT INJUNCTION

III. THE APPELLEES MISREPRESENT TO THE COURT 12

THAT THE APPELLANT COMMITTED A CRIME.

IV. THE APPELLEES MADE MULTIPLE APPELLATE 13

RULE VIOLATIONS IN DRAFTING THEIR BRIEFS.

CONCLUSION

APPELLANT'S VERIFICATION CERTIFICATE OF SERVICE

17 18 1-9

TABLE OF CASES AND AUTHORITIES

Andrews v. Elliot, 109 N.C. App. 271, 274, 426 6

S.E.2d 430, 432 (1993)

Bledsoe v. County of Wilkes, 135 N.C. App. 124, 16 125, 519 S.E.2d 316, 317 (1999).

Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 4

947, 961 (1968)).

Mineola Communi ty Bank v. Everson No. COA07-133 12

Philips Corporation v. KEC Bank KXD No. 08- 7

56296

Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 16

500 (2005)

-rv-

Stanley v. Dep't of Conservation & Dev., 284 4

N.C. 15, 28, 199 S.E.2d 641, 650 (1973)

Strauss v. Hunt, 140 N.C. App. 345, 348-49, 536 16 S.E.2d 636, 639 (2000)

Sweeney v. Hanley, 126 F. 97, 99 (9th Cir.1903) 7

STATUTES

N.C. Gen. Stat. § 7A-276.1

10

RULES
N.C.G.S. lA-l Rule 11
N.C.G.S. lA-l Rule 22
N.C.G.S. 1A-l Rule 24
AP PE LATE RULES 15

15

4

Rule 5(b)
Rule 9 (b) (4)
Rule 25(b)
Rule 26 (g) (1)
Rule 26(g) (3)
Rule 28(b) (8l
Rule 28 (e)
Rule 28 (f)
Rule 34 (a) (1)
Rule 34 (a) (3) 2,4

13

2,16

13

2,13,17

13

13

3

11

2,7,8,10,11,12,17

NO. 10-535

TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

*******************************

IN THE MATTER OF:

OAK HEALTH CARE INVESTORS OF NORTH CAROLINA, INC., A NORTH CAROLINA CORPORATION d/b/a THE LAURELS OF FOREST GLENN, LAUREL HEALTH CARE COMPANY,

Plaintiffs,

v.

KENNETH C. JOHNSON.

Defendant,

AND

) ) ) ) ) NORTH CAROLINA, INC., A NORTH) CAROLINA CORPORATION d/b/a ) ) ) ) ) )

---------------------------)

KENNETH C. JOHNSON.

Plaintiff,

v.

OAK HEALTH CARE INVESTORS OF

THE LAURELS OF FOREST GLENN, LAUREL HEALTH CARE COMPANY, SANDRA LYNN WOOD, AND ALAN

FINLAYSON,

Defendants,

AND

SUPERIOR COURT DIVISION File No.OS CVS 3411

SUPERIOR COURT DIVISION File No.08 CVS 3715

KENNETH C. JOHNSON, Plaintiff,

v.

OAK HEALTH CARE INVESTORS OF NORTH CAROLINA, INC., A NORTH CAROLINA CORPORATION d/b/a

THE LAURELS OF FOREST GLENN, LAUREL HEALTH CARE COMPANY, YATES, MCLAMB & WEYHER, LLP, BARBARA B. WEYHER, ESQ.,IN HER) PARTNERSHIP, PROFESSIONAL AND) INDIVIDUAL CAPACITIES, DAN J. ) MCLAMB, IN HIS PARTNERSHIP, ) PROFESSIONAL, AND INDIVIDUAL ) CAPACITIES, SEAN T. PARTRICK, ) ESQ, IN HIS, PARTNERSHIP, ) PROFESSIONAL, AND INDIVIDUAL, ) CAPACITIES,CHRISTOPHER M.WEST,) IN HIS PARTNERSHIP,PROFESIONAL)

AND INDIVIDUAL CAPACITIES, )

Defendants, )

-----------------------------)

-2-

SUPERIOR COURT DIVISION File No.09 CVS 6918

***************************************************

MOTION FOR RULE 34 SANCTIONS

***************************************************

TO THE HONORABLE COURT OF APPEALS OF NORTH CAROLINA:

NOW COMES THE Appellant Kenneth C. Johnson, pursuant

to Rule 5(b), Rule 9(b) (4), Rule 25(b); Rule 26(g) (3); Rule

28(b) (8); Rule 28(c) and Rule 34(a) (3) of the North

Carolina Rules of Appellate Procedure and respectfully

moves this Court for an order imposing sanctions against

the Appellees and their attorneys for filing Appellee

Briefs which grossly lack in the requirements of propriety,

grossly violate appellate rules, and grossly disregards the

-3-

requirements of a fair presentation of the issues to the

appellate court.

In support of this motion, Appellant

shows the following.

I. APPELLANT IS PREJUDICED BECAUSE DEFENSE COUNSEL APPEAR AS APPELLEES WITHOUT STANDING AND HAVE ORCHESTRATED TWICE THE NUMBER OF WORDS TO RESPOND.

1. The parties are held to a maximum 8,750 words in

their briefs.

The Appellees have insisted that the

multiple issues encompassing several different cases, be

incorporated wi thin this one appeal.

The Appellant has

diligently attempted to respond to these various collateral

issues within the word limitations of the appellate rules.

2. Upon information and belief, to circumvent the

intent of appellate Rule 28 (f), the Appellees have chosen

to submit two separate briefs.

However, both briefs are

essentially verbatim copies of the same brief except for

issue number:

VII. THE TRIAL COURT DID NOT ERR IN FINDING APPELLANT IN CONTEMPT.

3. The Brief of Appellees Yates f McLamb & Weyher,

LLP, Barbara B. Weyher f Esg., Dan J. McLamb, Esq., Sean

Timothy Partrick, Esq., and Christopher Mitchell West, Esq.

(hereinafter "the YMW brief"); and the Brief of Appellees

Oak Health Care Investors of North Carolina, Inc., a North

Carolina Corporation d/b/a the Laurels of Forest Glenn, Laurel Health Care Company, Sandra Lynn Wood, and Alan Finalyson (hereinafter "the Oak Health brief") adopt and incorporate the arguments of each.

4. The Appellant is extremely prejudiced in his ability to present the issues to the appellate court when limited to 8,750 words if the purported Appellees are essentially granted 17,500 words in which to respond.

S. The Appellees can file j oint briefs if they file a notice of joinder with the court, [Rule S (b)] but if they file separate briefs, they cannot file as Appellees arguing an issue from an action to which they were not a party.

6. Fatally, the YMW brie.f addresses the issue of contempt based upon prior rulings in case 05 CVS 3411,. in which the YMW Appellees appeared as counsel; not as parties or as intervenors; they have not applied to the court for permis s ion to intervene pursuant to N. C. G. S . 1A-l Rule 24; have not filed notice of joinder pursuant Rule 5 (b); and therefore the YMW Defendants lack standing to challenge this issue as appellees, joinders or as intervenors on appeal. Stanley v. Dep' t of Conserva tion & Dev., 284 N. C. 15, 28, 199 S.E.2d 641, 650 (1973) (quoting Flast v. Cohen, 392 U.S. 83, 99, 20 L. Ed. 2d 947, 961 (1968)).

-5-

7. Insofar as the YMW Appellees have no standing and

the party with standing [Oak Health Care] failed to file an

Appellee brief on this issue, the court must conclude by

operation of law, that the argument as to contempt is

deemed abandoned.

II. THE APPELLEES MISREPRESENT TO THE COURT THAT THE PROVISIONS OF THE PRELIMINARY INJUNCTION ARE CONTROLING, DESPITE ITS CONFLICTING PROVISIONS WITH THE PERMANENT INJUNCTION.

1. One of the key disposi ti ve issues in this appeal

is whether or not the Appellant violated Judge Leon

Stanback's 31 August 2006 order.

2. Although Judge James Spencer's 28 March 2005

order granting a preliminary injunction reads, in pertinent

part (R p 902) "It is further ordered that the Defendant

cease making the defamatory statements as set forth in the

internet

web

sites

and

other pub~ications

of

the

De:fe.ndant", the contempt order is based upon a purported

violation of Judge Leon Stanback's 31 August 2006 order,

(R pp 958-959) which is judicially silent on the issue of

"defamatory statements."

3 .

Throughout the pendency of this case,

upon

information and belief, the Appellees have purposely and

strategically refused to cite with any specificity, which

portions of the challenged publication (s) are defamatory I

~6~

which portions are untrue and which portions are not otherwise included within the public records of state agencies, even after the Appellant offered to remove any information that the Appellees contend fell within that

criteria.

They have instead relied upon their strategic

vagueness to support their continuing calls for contempt

sanctions.

"To be actionable, a defamatory statement must

be false ... f!

Andrews v. Elliot, 109 N.C. App. 271, 274,

426 S.E.2d 430, 432 (1993).

4. Curious to see how the Appellees would defend their support for contempt sanctions in their brief before the North Carolina Court of Appeals, it became clear that they chose to simply continue to misrepresent the stated provisions of the permanent injunction as they have at the superior court level of litigation.

5. Upon information and belief, in an effort to deceive the appellate court, the Appellees transcribed Judge James Spencer's 28 March 2005 order granting a preliminary injunction, which is prominently displayed on page -7- of the YMW brief.

6. In contrast, nowhere in the expansive YMW brief do the Appellees present the court with the plain language

of the permanent injunction.

However, upon information and

belief, they do attempt two legal "hat tricks" to confuse

-7-

the appellate court.

First [YMW brief page 8, "hereinafter

written as (YMW p 8) J they purposely misrepresent that Judge Leon Stanback's 31 August 2006 order "converted Judge

Spencer's

preliminary

injunction

into

a

permanent pages 5-6

injunction."

"hereinafter

Secondly written as

[Oak Health (Oak pp 5-6) J

brief

they

misrepresent

that "The defau1.t judgment acts as a permanent injunction, reiterating the mandates from the prel.iminary injunction."

7. If Judge Stanback's 31 August 2006 order had

simply "converted Judge Spencer's preliminary injunction into a permanent injunction", it would have contained the statement "It is further ordered that the Defendant cease making the defamatory statements ... "» however it does not. As a result the Appellees made a false statement of material fact to the court with the full knowledge of its falsity and grossly disregarded the requirements of a fair presentation of the lssues to the appellate court in violation of appellate Rule 34 (a) (3)

8. A preliminary injunction dissolves when a final judgment is entered. See Sweeney v. Hanley, 126 F. 97, 99 (9th Cir.1903)., also see Philips Corporation v. KBC Bank

KXD No. 08-56296.

This is not a unique theory in the rules

of civil procedure.

The Appellees are aware that Judge

Stanback's order is a final judgment that amended the

-8-

provisions of Judge Spencer's preliminary injunction. Thus, when the Appellees stated "Tbe defau~t judgment acts as a permanent injunction, reiterating the mandates from the pre~iminary injunction" the Appellees again made a false statement of material fact with the full knowledge of its falsity and grossly disregarded the requirements of a fair presentation of the issues to the appellate court in violation of appellate Rule 34(a) (3)

9.

The

Appellees

continue

to

allege

that

the

permanent injunction enjoins the Appellant from the "use of the term "The Laurels." (Oak p 5) However, the order specifically states (R p 958-959) "It is further ordered that t.he Defendant cease use of any and a~~ emai~ address [esJ wit.h (sic) contain liThe Laure~s" o.r "The Laurel Way" (in any form) or any other emai~ address that may contain Plaintiff's trademark or tradename."

10. It would benefit the Appellees' argument if they

could properly allege that the Appellant,

by simply

mentioning the term "The Laurels" would violate the order. Therefore, they converted the phrase "the use of any a.nd a~~ email address with contain the term "The Laurels ... ", to an overly broad order, never entered, that enjoined the use of the term "The Laurels" at all. (Oak p 5)

-9-

11. By purposely misrepresenting the terms of Judge Stanback's order to the court in this regard, the Appellees once again made a false statement of material fact with the full knowledge of its falsity and grossly disregarded the requirements of a fair presentation of the issues to the appellate court in violation of ~ppellate Rule 34{a) (3).

12. The most egregious false statement of a key material fact in the Appellee's brief (YMW p 13) is the phrase "Mo.reover, the facts cited by Appe~~ant regarding his assertion t.hat the subject documents are 'pub~ic record" are pure suzmise and not contained anywhere in the

Record."

13. However, the Appellant Brief is replete with

factual

assertions,

supported

by

the

Record,

that

absolutely show these documents are public record, that the evidence of their public record status was REPEATEDLY supplied to the Appellees, and that any suggestion to the contrary is not supported by the facts or the Record.

14. Admittedly, at the of the judicial settlement hearing, the Appellees attempted to exclude the evidence detailing the public records status of the information. However, the trial court left the issue ambiguous and as such, the information is contained within the Record (R pp 704-736) (R pp 746-747) (R p 750)as well as (RS pp 1-38).

-10-

15. Further the Appellees were repeatedly notified

in writing (R pp 750, 762, 774-775, 1366, 1372, 1382)that this information is public record and further notified that as such the court is specifically prevented by statute

(N.e.G.S.

§ 74-276.1)

from finding the Appellant in

contempt for publishing any of it.

However, the Appellees

repeatedly ignored the evidence and the law.

16. Most astoundingly, it is the Appellees themselves who initially and continually placed all of the information into the public record themselves, by providing unredacted

copies

to

state

agencies

without

redaction

and

as

unredacted exhibits in support of their various motions

(R pp 878-879, 887-888, 979-1027, 1118-1170, 1203-1234, 1261-1270,

1037-1081, 1282-1289) ,

1091-1096,

with no

request to place any of the information under seal.

17. Therefore, it is clear, that when the Appellees stated in their brief (YMW p 13) "Moreover, the facts cited by Ap'pe~~ant regarding his assertion that the subject documents are ''pub~ic record" are pure surmise and not contained anywhere in the Record" they again made an extremely false statement of material fact with the full knowledge of its falsity and grossly disregarded the requirements of a fair presentation of the issues to the appellate court in violation of appellate Rule 34 (a) (3) .

-11-

18. The Appellees' repeated assertions that the

Appellant has continued to publish confidential medical information, is clearly a purposeful misrepresentation of

the facts.

The Appellees have continued to assert that

although the published information fails to identify any patient or client of the Defendant [or Plaintiff] as Judge Stanback's order states, the Appellees can simply aver that any mention of the case is somehow confidential medical information and defamatory.

The Appellees have continuously presented to the Court that the Appellant has violated Judge Stanback's 31 August 2006 (R p 956) order; by relying on the more restrictive provisions of Judge Spencer's 28 March 2005 (R p 900) and; the more restrictive still, Judge Stephens' 14 March 2005 (R p 897) orders granting preliminary injunctive relief.

This self-serving interpretation of Judge Stanback's order is not well grounded in fact and unwarranted by existing law; and by stating otherwise in their brief, the Appellees made a false statement of material fact with the full knowledge of its falsity and grossly disregarded the requirements of a fair presentation of the issues to the appellate court in violation of appellate Rule 34 (a) (1) and Rule 34 (a) (3) .

-12-

III. THE APPELLEES MISREPRESENT TO THE COURT THAT THE APPELLANT COMMITTED A CRIME.

1. Although the Appellees are facing a civil action

for malicious prosecution (09 CVS 6918) based upon their

unsuccessful attempt to privately prosecute the Appellant

for a purported criminal contempt (R pp 1358-1401); and the

Appellees are keenly aware that the Appellant was found NOT

GUILTY (R P 1454), the Appellees

nevertheless state in

their brief (Oak p 7) " ... Appellant actively assisted a

witness avoid service o£ a subpoena ... "

2. By stating the "Appellant actively assisted a

witness avoid service o£ a subpoena", with the full

knowledge that these charges were dismissed and the

Appellant found "NOT GUILTY", the Appellees made a false

statement of material fact with the full knowledge of its

falsity and grossly disregarded the requirements of a fair

presentation of the issues to the appellate court ln

violation of appellate Rule 34(a) (3).

3.

Upon information and belief, this obviously

false statement is a strategic, deliberate and unwarranted

attack upon the personal integrity of the Appellant and is

"grossly lacking in the requirements of propriety" ln

violation of appellate Rule 34 (a) (3). See Mineola Communi ty

Bank v. Everson No. COA07-133.

-13-

IV. THE APPELLEES MADE MULTIPLE APPELLATE VIOLATIONS IN DRAFTING THEIR BRIEFS.

RULE

1. The Appellees' Briefs do not comply with the

plain language of the North Carolina Rules of Appellate

Procedure in many instances.

a) Both briefs, in violation of Rule 26 (g) (1), fail

to maintain a IN inch margin from the top and right side of

the page.

b) By convention, North Carolina appellate courts

use the date style "22 May 2008."

However, both Appellee

Briefs consistently use the date style "May 22, 2008"

throughout. [see Appellate Style Manual Page 7]. EXHIBIT A

c) In their brief, the Appellees, in violation of

Rule 9 (b) (4) , consistently write the citations to the

record as (R. p.960). Appellate Rule 9(b) (4) makes it clear

that the citation references should be written (R p 960).

d) The Appellees write multiple citation pages as

(R. p.

220-227). However, this should be written as

(R pp 220-227) [Appellate Style Manual Page 42 J. EXHIBIT B

e) Both Appellee Briefs in violation of Rule

26(g) (3); Rule 28(b) (B)and Rule 28(c), fail to include the

email addresses of the counsels of record, and the YMW

brief fails to list the State Bar number of counsel as

-14-

required in the identification of counsel portion at the conclusion of their brief(s), (Oak p 30) and (YMW p 18).

f) INEXPLICABLY:

A key dispositive issue in this

appeal is the copious errors that the Appellees deem as simply typographical or misnomer errors.

They ask the court (Oak p 28) to accept that the "West affidavi t" which is sworn to by another, (R pp 563-564) merely contains a typographical error and is nevertheless valid.

They ask the court to accept that moving the trial court for an order of dismissal based upon "subject matter

jurisdiction"(R pp 192-197)

when they meant to write

"personal jurisdiction" is merely a typographical error.

(Oak pp 13-15),

They ask the court to accept that although they failed to cite the statutory basis for the attorney fee sanctions, as required in their motion, (R pp 229-234) and proposed order, the court should nevertheless deem this a mere typographical error.

They ask the court to deem their initiation of a motion for contempt sanctions, absent a sworn affidavit

from

the

"aggrieved

party"

as

an

inconsequential

typographical oversight.

(although they were previously

warned (R p 1377) about this by the trial court).

-15-

The Appellees ask the Court to accept,

in clear

violation of decades of settled law, that when they moved the trial court (R pp 53, 106, 130) to strike information from the complaint, but failed to assert the defense of insufficiency of service of process, within the motion; that too was just an excusable error in "typing.u

The Appellees ask this Court to hold that these

malignant

"typographical

and

misnomeru

errors

are

inconsequential; but even with several attorneys at their disposal, many of them appellate attorneys, after being granted an almost unprecedented 30 extra days to file their briefs, and at issue in this appeal, their propensity to draft multiple legal documents that are replete with

serious major substantive "typographical" errors,

they

nevertheless file 2 separate briefs that contain headers in the argument section of both briefs that cite the statutory basis for attorney fee sanctions as Rule 22; (YMW p v); (Oak p v) and in the body of their argument as Rule 11. (YMW p 6); and (Oak p 27)

Once

again,

the

Appellees

make

another

major

substantive "typographical error"; and this, at the Court of Appeals level of litigation.

-16-

Upon information and belief, the Appellees will ask this court to again accept that although they purportedly had a clear understanding of the statute that they were

basing

their

request

for

attorney

fees

upon,

they

nevertheless incorrectly cited a different Rule in both

briefs due to a mere typographical error.

Even a pro se

litigant could not and should not expect to receive this much judicial acquiescence ... INEXPLICABLE.

CONCLUSION

It is well settled that our Appellate Rules "are mandatory and not directory." Reep v. Beck, 360 N.C. 34, 38, 619 S.E.2d 497, 500 (2005). "Furthermore, [the Rules of

Appellate Procedure] apply to everyone

whether acting

pro se or being represented by all of the five largest law firms in the state." Bledsoe v. Coun ty of Wilkes, 135 N. C. App. 124, 125, 519 S.E.2d 316, 317 (1999). See also Strauss v. Hunt, 140 N.C. App. 345, 348-49, 536 S.E.2d 636, 639 (2000) (" [E] ven pro se appellants must adhere strictly to

the Rules of Appellate Procedure (citing N.C. R. App. P. 25(b)}.

In the case at bar, the Appellees have made multiple

. or risk sanctions.")

violations of the appellate rules as to style, but more

importantly,

their violations go to the heart of the

subs t anc e of their arguments in that filing a brief and

appearing as appellees in a matter in which they were

counsel and not parties is a jurisdictional violation that

cannot be waived.

Moreover, the Court of Appeals should

consider

these

multiple

instances

of

purposeful

misrepresentations to the court as inexcusable and adj udge

that it warrants the most severe sanctions.

Upon information and belief, the Appellees' briefs

seek to challenge the integri ty and test the attention to

detail of the North Carolina Court of Appeals system, in

that each of these purposeful misrepresentations are easily

disproved by even a cursory review of the record.

It is incumbent upon the court to issue sanctions

commensurate with the degree of deception and number of

violations of the appellate rules pursuant to Rule 25 (b) ;

Rule 26(g) (3) and Rule 34(a) (3) of the North Carolina Rules

of Appellate Procedure.

This the 30th day of August 2010.

Kennet nson

Appellant, pro se 3105 Manchester Court Jamestown, N.C. 27282 (919) 341-7382

Email: KenJohnsonMusic@gmail.com

-18-

APPELLANT'S VERIFICATION

I, Kenneth C. Johnson am competent to testify to the matters stated wi thin this VERIFIED MOTION. The facts set forth in the foregoing motion are of my own knowledge and are true, except as to those matters stated upon information and belief, and as to those matters, I believe them to be true.

This the :3CJ'fh. day of August 2010.

Appellant

Sworn to and subscribed before me

This 30..u- day of f\.JS,U$ 1-

, 2010

Signature of Notary Public

Name of Notary Public

My Commission Expires: ~ L(-,.;)1J/a...._

-19-

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Motion and attachments was served upon counsel of record for the Appellees as listed below by depositing the same in a postpaid, properly addressed wrapper in a post office or other official depository under the exclusive care and custody of the Uni ted States Postal Service or by other method of delivery as authorized by the North Carolina Rules of Civil Procedure:

This the

day of

August

2010.

X United States Mail:

X FAX:

Christopher Mitchell West NCBN 29504

Sean Timothy Partrick NCBN 25176

Yates McLamb & Weyher, L.L.P. Post Office Box 2889

Raleigh, N.C. 27602

Attorneys For Defendants

Oak Health Care Investors and Laurel Health Care Company FAX: ( 91 9) 8 35 - 0 91 0

Walter Edgar Brock, Jr.

Young, Moore & Henderson, P.A. Post Office Box 31627

Raleigh, N.C. 27622

Attorney For Defendants

Yates McLamb & Weyher, L.L.P., Barbara Brandon Weyher,

Dan Johnson McLamb,

Sean Timothy Partrick and Christopher Mitchell West FAX: ( 919) 782 - 6753

ster Court Jamestown, N.C. 27282 (919) 341-7382 KenJohnsonMusic@gmail.com

- ii -

Notes on cover page of Record on Appeal:

• 'l'he "No." of the case at the top left hand corner is left blank.

See Appendix B. The Clerk's office will assign a number when the record is filed and it will appear in the printed record on appeal.

a In some circumstances, one or both parties will have filed a motion (e.g., for extension of time) or a petition (e.g., for writ of supersedeas) before the record on appeal has been filed. In those Situations, the clerk's office will have assigned a temporary, or "p number" to the case (e.g., "COA 09-PIOO") .

a This "P number" will not correspond to the docket number later assigned to the appeal.

o Many P number documents should be included in the record on appeal under Rule 9, including orders extending time, and orders qra.nting a petition for writ of supersedeas or certiorari.

• Generally, margins for the non-index pages in the record on appeal are 1 inch all around. See Rule 26(q) (1). Any new typed material should be single-spaced. See Appendix B.

• Index entries, on the other hand, are indented ~ inch from both standard 1" margins (or, put another way, the index line has margins of 1.15" from each side, yielding a 5" line in the middle). See Appendix B.

• Appendix C provides a "suggested order" for the items to be included in the :r:ecord on appeal, depending on the type of case on appeal. Items included because they are "necessary for a.n understanding of all issues presented on appeal," Rule 9(a) (1)e; see also Rule

9(a) (l)j, "should be arranged in the order in which they occurred or were filed in the trial tribunal." Rule 9 (b) (1) .

• Though not required, it is helpful to the court to provide additional explanatory material in the index entries, such as identifying which party filed the pleading, the date it was filed, etc. One way to include such explanatory information is to present the added material in brackets, as shown in the sample index above.

• See Appendix C for other items that might be included in the record and listed in the index.

• By convention, North Carolina appellate courts use the date style, "14 November 2010."

• P:r:ocedures for the record on appeal in a juvenile case are presented in the section of this manual titled "Typical Record on Appeal in a Juvenile Case." infra.

EXHIBIT

~ A

I ---LT.-----

Appellate Style Manual Page 7

- 6 -

2007 I (R P 49), and an Order Closing a Portion of East Street on

1 December 2008, (R p 51), which resulted in the imposition of a

series of . [Recitation of facts continues]

Notes on Statement of the Facts:

• The Appellant's brief contains a "full and complete" and "nonarqumentative" Statement of the Facts that are important to understanding the issues argued in the brief. Rule 28(b) (5). Long quotations from the transcript or the Record are not encouraged, but accurate references to the place where the facts can be found are required.

• The Appellee's brief need not contain a Statement of the Facts unless the Appellee disagrees with the Appellant's Statement.

• Sometimes the Appellee will include a Statement of Facts that just ~ some facts to the Appellant's recitation.

• It is better to make the Statement of Facts coherent (by weaving the testimony of the various witnesses together, tying them by time or subject) than to mechanically recite what each witness said. If there is a conflict in the evidence on an important point, recite first the evidence on one Side, then recite the evidence on the other side.

• The Statement of Facts must be scrupulously accurate and include even those facts you must later spend a lot of time explaining away in the argument section. If you leave out a harmful fact, you can be su.re the Appellee will point it out to the court and your credibility will suffer.

• The 2009 amendments made clear that there should be no period after a "p" or a "pp" in citations to the record, transcript, etc. See Rule 9(b) (4).

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Appellate Style Manual page 42