Direct link:https://www.ncappellatecourts.org/show-file.php?document_id=255752
All files in the Supreme Court case: 306P18-2:
https://www.ncappellatecourts.org/search-results.php?sDocketSearch=306P18-2&exact=1
All files in the Court of Appeals case P19-308: https://www.ncappellatecourts.org/search-results.php?sDocketSearch=P19-308&exact=1
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No. P19-308 DISTRICT
3A
NORTH
CAROLINA COURT OF APPEALS
*************************************************
HUNTER F. GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee, )
)
From Pitt
County
vs. )
No. 13-CVD-398
)
ANDRZEJ GRODNER, )
(now
Andrew Grodner) )
Defendant-Appellant, )
___________________________________)
*************************************************
MOTION FOR
EXTENSION OF TIME TO FILE
RECORD ON
APPEAL
*************************************************
(Filed
electronically 17 October 2019)
*****
TO THE HONORABLE COURT
OF APPEALS OF NORTH CAROLINA:
Defendant-Appellant Andrzej Grodner (currently Andrew Grodner),
acting pro se, pursuant to North Carolina Rules of Appellate Procedure
("N.C.R.A.P.") Rules 2, 12(a) and 27(c), and Title II of the
Americans with Disabilities Act (ADA), respectfully moves this Court for an
extension of time to file Record on Appeal fifteen (15) days after NC Supreme
Court rules on related Petition and Motions in front of it related specifically
to preparation of Record of Appeal. In support of this Motion the
Defendant-Appellant shows the following:
SUPPORT IN FACT
- On 7 March 2019 trial Court held a hearing on multiple motions filed by the parties, on 8 May 2019 trial Court entered an Order from said hearing, on 24 May 2019 Defendant-Appellant timely filed Notice of Appeal, on 28 June 2019 and on 12 July 2019 Defendant-Appellant was granted extensions to serve proposed record on appeal, and on 12 August 2019 Defendant-Appellant timely served proposed record on appeal on Jeffrey L. Miller, attorney for Plaintiff-Appellee.
- On 3 September 2019 Jeffrey L. Miller filed the Plaintiff-Appellee's Objections to the Proposed Record on appeal and requested a Judicial Settlement of the record and on 17 September 2019 Judge Hardison presided over the hearing and ruled on Defendant-Appellant's Verified Amended Request for Continuance and on Jeffrey L. Miller's Objections. At the conclusion Judge Hardison requested that Jeffrey L. Miller prepare proposed Order within five (5) days and allowed Defendant-Appellant to respond to said proposed Order within five (5) days.
- On 20 September 2019 Defendant filed with this Court a Motion for Extension of Time to Submit Response to Proposed Order for Settlement of Record on Appeal because he could not submit it to Judge Hardison within the allotted amount of time. Defendant argued that he needed a transcript to fully respond to Proposed Order because he is non-native English speaker, non-lawyer, and has Attention Deficit Hyperactivity Disorder (ADHD) which has been recognized by this court as a valid reason to grant him additional accommodations regarding extensions of time (see this Court's Order from 15 July 2019). Defendant presented a contract for transcription and communication showing that the transcript may not be ready for as long as 40 days. Moreover, Defendant showed that there was no harm to Plaintiff for such extension. Most importantly, Jeffrey L. Miller, attorney for Plaintiff, did not file and did not have a valid objection except for false statement he made in an email to Judge Hardison. Jeffrey L. Miller did not respond to to Defendant's Motion and did not dispute any representation Defendant made about his actions and statements.
- On 24 September 2019 this Court denied Defendant's 20 September 2019 Motion without any discussion and on the same day Defendant promptly filed Petition for Writ of Certiorari with North Carolina Supreme Court to review said 24 September 2019 Order, which initiated docket for case number 306P18-2.
- On 25 September 2019 Judge Hardison signed Order for Settlement of Record on Appeal but have not filed it.
- On 27 September 2019 Defendant filed Motion for Temporary Suspection of NCRAP Rule 11 Pending Review of Petition for Writ of Certiorari with NC Supreme Court (306P18-2) and asked that NC Supreme Court issue an Order allowing Judge Hardison to file his Order only after NC Supreme Court rules on Defendant's Petition. Defendant also filed Motion for Expedited Review with NC Supreme Court. As of this filing neither Petition nor any Motions have been ruled on by NC Supreme Court.
- On 2 October 2019 Judge Hardision filed his Order for Settlement of Record on Appeal which was verbatim of Jeffrey L. Miller's Proposed Order without receiving response from Defendant.
- On 9 October 2019 Jeffrey L. Miller filed with NC Supreme Court Response of Plaintiff-Appellee to Petitions and Motions of the Defendant-Appellant; and, Plaintiff's Motion to Tax Costs and Attorney Fees where in part he provided false statement that Defendant's 24 September 2019 Petition is moot because Judge Hardison filed his Order on 2 October 2019.
- On 16 October 2019 Defendant filed Verified Response to Motion to Tax Costs and Attorney Fees and Gatekeeper Sanctions together with Motion to Disqualify Opposing Counsel arguing that Jeffrey L. Miller should be disqualified from any and all legal matters involving Defendant because his continuing dishonesty prejudices the Defendant and results in violation of Defendant's due process right.
- Defendant files this motion on the last day he could possibly file it, which is fifteen (15) days after 2 October 2019 Order for Settlement of Record on Appeal as he was waiting to the last minute for any ruling whatsoever from NC Supreme Court. As of filing of this Motion there has been no indication when NC Supreme Court may rule on any documents in front of it, and so far it even ignored Defendant's Motion for Expedited Review.
- Defendant-Appellant is diagnosed with Attention Deficit Hyperactivity Disorder (A.D.H.D.), which is a mental impairment that substantially limits his major life activities, and which is specifically listed in Federal Statute 28 C.F.R. § 35.108(b)(2) as a "disability." Defendant-Appellant must take medication twice daily to manage some of the A.D.H.D. symptoms.
SUPPORT IN LAW
12. N.C.R.A.P. Rule 2 provides that Appellate Court
may vary the "requirements or provisions of any of [N.C.R.A.P.]
rules" to "prevent manifest injustice to a party," such as when
an individual with a disability is not provided proper accommodations and thus
is prevented from fully exercising his or her constitutional right to access
the courts.
13. N.C.R.A.P. Rule 12(a) Provides that Record on
Appeal shall be filed "[w]ithin fifteen days after the record on appeal
has been settled by any of the procedures provided in Rule 11."
14. N.C.R.A.P. Rule 27(c)(2) provides that for a
good cause a party may file a motion "for extensions of time other than
those specifically enumerated in Rule 27(c)(1) (...) to the appellate court to
which appeal has been taken."
15. Title II of the Americans with Disabilities Act
(ADA) of 1990 (42 U.S. Code 12131-12134), as amended by the ADA Amendments Act
of 2008 (Public Law 110-325, 122 Stat. 3553), the ADA Amendments Act Final Rule
(81 FR 53202, published Aug. 11, 2016), and its implementing regulations, and
section 504 of the Rehabilitation Act of 1973 (29 U.S. Code §701), provide that
public entities, such as state Courts, are prohibited from discrimination
against qualified individuals with disabilities, and requires such public
entities to make reasonable modifications to their policies accomodating needs
of such individuals.
SHOWING OF PROPER PURPOSE
16. This motion is timely because it is filed on or
before the deadline to file Record on Appeal, currently 17 October 2019. The
timing of the filing is due to the fact that NC Supreme Court has not ruled on
any relevant documents in front of it and thus it is not Defendant's fault.
17. The rationale for additional time to file record
on appeal comes from the fact that there are multiple documents in front of NC
Supreme Court (306P18-2) which will determine how and when Defendant shall
prepare and file his Record on Appeal with this Court. Thus, for now fault of
his own, Defendant could not work on Record on Appeal.
18. Requiring Defendant to file two Records on
Appeal not only puts undue burden on the Defendant but also goes against the
interest of judicial economy.
19. ADHD is a genetic condition which
Defendant-Appellant has since birth but was only diagnosed in 2006. He is
currently receiving medications which he will have to take for the rest of his
life. ADHD cannot be cured but can only be partially managed. Thus, having this
condition is outside of the Defendant-Appellant control. Additional time is a
reasonable accommodation given to individuals with ADHD as has been recognized
by this Court in it Order of 15 July 2019.
20. Defendant-Appellant is not acting for any improper
purpose or to delay the resolution of this matter.
WHEREFORE, Petitioner-Defendant asks for an extension of time to
file record on appeal with this Court of additional fifteen (15) days days
after NC Supreme Court rules on related Petition and Motions in front of it in
case 306P18-2.
Respectfully submitted, this 17th Day of
October, 2019.
/s/ Andrew
Grodner _
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant=-Appellant, pro se
CERTIFICATE
OF SERVICE
I
hereby certify that a copy of the foregoing was served upon all counsel of
record by emailing and mailing a copy thereof by first-class mail, postage
paid, and addressed as follows:
Mr. Jeffrey Miller, Esq.
Miller and Audino, LLP
2510 E. 10th Street
Greenville, NC 27858
252-493-6138
email: jeff@millerandaudino.com
Counsel for Plaintiff-Appellee
This the 17th Day of October, 2019.
/s/ Andrew
Grodner
_
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant-Appellant, pro se
