Opinion
No. COA13–74.
2013-06-4
In the Matter of the foreclosure of a Deed of Trust executed by Victor RADISI and Elizabeth Anne Radisi in the original amount of $395,200.00 dated April 21, 2006, recorded in Book 1745, Page 365, Iredell County Registry Substitute Trustee Services, [I]nc., Substit[ute] Trustee.
Womble Carlyle Sandridge & Rice, LLP, by Kenneth B. Oettinger, Jr. and Amanda G. Ray, for appellee U.S. Bank, N.A. Victor Radisi and Elizabeth Radisi, pro se, respondents-appellants.
Appeal by respondents from order entered 14 September 2012 by Judge Joseph N. Crosswhite in Iredell County Superior Court. Heard in the Court of Appeals 6 May 2013. Womble Carlyle Sandridge & Rice, LLP, by Kenneth B. Oettinger, Jr. and Amanda G. Ray, for appellee U.S. Bank, N.A. Victor Radisi and Elizabeth Radisi, pro se, respondents-appellants.
DAVIS, Judge.
Victor and Elizabeth Radisi (“respondents”) appeal from the trial court's order authorizing foreclosure on their property. After careful consideration, we grant the motion by U.S. Bank, N.A. (“U.S.Bank”) to dismiss respondents' appeal due to substantial violations of the North Carolina Rules of Appellate Procedure.
Factual Background
On 21 April 2006, respondents purchased property in Troutman, North Carolina, secured by a promissory note and a deed of trust. Respondents defaulted on their loan in September 2010, and foreclosure proceedings were initiated by the substitute trustee—Substitute Trustee Services, Inc. (“STS”)—on 8 November 2011.
On 19 January 2012, an assistant clerk of superior court issued an order authorizing STS to proceed with foreclosure by power of sale on respondents' property. Respondents appealed the clerk's order to superior court, which entered an order on 14 September 2012, finding that (1) U.S. Bank was the holder of the promissory note and deed of trust securing respondents' loan; (2) the note evidenced a valid debt owed by respondents to U.S. Bank; (3) respondents were in default under the note; (4) U.S. Bank had the right to foreclose under the deed of trust; and (5) notice had been provided to all entitled parties. Accordingly, the trial court authorized STS to proceed with foreclosure.
Respondents, proceeding pro se, filed a notice of appeal with this Court on 15 October 2012. The certificate of service included in the record on appeal indicated that respondents were serving STS with the proposed record on appeal but bore no indication that U.S. Bank was also being served with a copy. Respondents submitted their appellants' brief on 22 February 2013. Once again, the certificate of service revealed that STS was being served with a copy of the brief but that U.S. Bank was not. On 7 February 2013, U.S. Bank filed a motion with this Court seeking dismissal of respondents' appeal in light of their numerous violations of the North Carolina Rules of Appellate Procedure. By order entered that same day, the motion to dismiss was referred to this panel for decision.
Analysis
In support of its motion to dismiss respondents' appeal, U.S. Bank points to respondents' failure to (1) serve U.S. Bank with a copy of the proposed record on appeal; (2) include in the record on appeal materials necessary for an understanding of the issues presented; and (3) serve U.S. Bank with a copy of their appellants' brief. We agree that dismissal of respondents' appeal is warranted.
First, N.C. R.App. P. 11(b) requires that the proposed record on appeal be served on “all other parties.” The failure to do so prevents an appellee from being able to review the proposed record on appeal and notify the other parties to the appeal of its approval of the proposed record on appeal, its objections, its proposed amendments, or its proposed alternative record on appeal. N.C. R.App. P. 11(b). We have “repeatedly held that the failure to serve a proposed record on appeal in accordance with Rule 11 is a substantial violation of the rules requiring dismissal of the appeal .” Day v. Day, 180 N.C.App. 685, 688, 637 S.E.2d 906, 908 (2006) (citing multiple cases).
Second, N.C. R.App. P. 9(a)(1)(e) mandates that the record on appeal is to include “so much of the litigation ... as is necessary for an understanding of all issues presented on appeal ....“ And “ ‘when the evidence is not in the record the matter is not reviewable.’ “ Walker v. Penn Nat'l Sec. Ins. Co., 168 N .C.App. 555, 560, 608 S.E.2d 107, 110 (2005) (quoting 1 Strong's N.C. Index 4th, Appeal and Error § 489 (1990)). Here, respondents failed to include in the record on appeal the promissory note and deed of trust securing the loan on their property—the documents essential to their primary contention on appeal regarding who is, in fact, the proper holder of the note. Without these documents, meaningful review of respondents' arguments is impossible. See id . at 560, 608 S.E.2d at 111 (holding that appellate court was “unable to perform a meaningful review” of trial court's factual determination where appellant failed to include in record on appeal evidence relating to appealed issue).
Third, N.C. R.App. P. 13(a)(1) provides that the appellant—within 30 days after the clerk of this Court has mailed the printed record on appeal to the parties—is required to “file a brief in the office of the clerk of the appellate court and serve copies thereof upon all other parties separately represented.” N.C. R.App. P. 13(c) further provides that “[i]f an appellant fails to file and serve a brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court's own initiative.” This Court has repeatedly dismissed appeals due to an appellant's failure to file or serve a brief in compliance with Rule 13. See Dalenko v. Wake County Dep't of Human Servs., 157 N.C.App. 49, 53–54, 578 S.E.2d 599, 602,appeal dismissed and disc. review denied,357 N.C. 458, 585 S.E.2d 386 (2003), cert. denied,540 U.S. 1178, 158 L.Ed.2d 79 (2004); Thompson v. First Citizens Bank & Trust Co., 151 N.C.App. 704, 706, 567 S.E.2d 184, 186–87 (2002).
We conclude that respondents' “noncompliance with the appellate rules rises to the level of a substantial failure or gross violation,” due to the fact that these violations have effectively (1) prevented U.S. Bank from engaging in the adversarial process; and (2) impaired this Court's ability to review the merits of this appeal. Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366–67 (2008). Nor do we believe that this case warrants the invocation of Rule 2 in order to reach the merits. Id. at 201, 657 S.E.2d at 367. Accordingly, we grant U .S. Bank's motion to dismiss respondents' appeal.
We recognize that dismissal of an appeal is a drastic sanction to be used only in those extraordinary instances where lesser sanctions will not suffice. However, respondents' gross violations of core requirements of the Appellate Rules makes this case one of the rare occasions in which dismissal of the entire appeal is warranted.
Conclusion
For the reasons stated above, respondents' appeal is dismissed.
DISMISSED. Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).