Opinion
No. COA12–949.
2013-02-19
Tanzea S. MAHBUBA, Plaintiff, v. Bryant K. WASHINGTON, Defendant.
Bailey & Ryan, PLLC, by Earnest N.G. Bailey and Nora Ryan, for Plaintiff–Appellee. Bryant K. Washington, pro se, Defendant–Appellant.
Appeal by Defendant from orders entered 19 April 2012 and 30 April 2012 by Judges Chester Davis and Lawrence Fine in Forsyth County District Court. Heard in the Court of Appeals 13 December 2012. Bailey & Ryan, PLLC, by Earnest N.G. Bailey and Nora Ryan, for Plaintiff–Appellee. Bryant K. Washington, pro se, Defendant–Appellant.
HUNTER, ROBERT C., Judge.
Bryant K. Washington (Defendant), appeals from orders dismissing his counterclaim, denying his motion to consolidate, and granting an absolute divorce. For the reasons stated below, we dismiss his appeal.
Tanzea S. Mahbuba (Plaintiff) filed a Complaint for Absolute Divorce on 2 November 2011 in Forsyth County District Court. Plaintiff's complaint alleges that she and Defendant were married on 12 November 2003. No children were born of the marriage. Defendant answered the complaint, moved to consolidate the instant action, numbered 11 CVD 7710, with a prior domestic action in Forsyth County, numbered 08 CVD 9006, and counterclaimed for a declaratory judgment that he and Plaintiff were never legally married. In 08 CVD 9006, Defendant filed a complaint for divorce from bed and board on 24 November 2008. This Court dismissed Defendant's two previous appeals from orders in 08 CVD 9006. Washington v. Mahbuba, 203 N.C.App. 573, 692 S.E.2d 890 (2010) (unpublished) (dismissing appeal as interlocutory); Washington v. Mahbuba, ––– N.C.App. ––––, 729 S.E.2d 731 (2012) (unpublished) (dismissing appeal as interlocutory but considering merits of the appeal as to contempt order and subject matter jurisdiction of trial court). In the present case, Plaintiff moved to dismiss Defendant's counterclaim and motion to consolidate on 15 March 2012. Plaintiff joined a motion for sanctions with this motion. The trial court dismissed Defendant's counterclaim, denied Defendant's motion to consolidate, and granted Plaintiff's motion for sanctions on 19 April 2012.
Plaintiff moved for summary judgment of absolute divorce on 19 April 2012. The trial court granted summary judgment of absolute divorce on 30 April 2012. The trial court ordered that the pending claims for postseparation support (PSS), alimony, and equitable distribution in 08 CVD 9006 should survive the grant of divorce. Defendant filed Notice of Appeal on 22 May 2012.
As a preliminary matter, we note that Defendant's brief was filed in violation of several of our Rules of Appellate Procedure. Defendant's brief fails to include a non-argumentative statement of facts in violation of Rule 28(b)(5). Defendant's brief also violates Rule 28(b)(6) by omitting a statement of the applicable standard(s) of review. Defendant also used a proportional font smaller than 14–point and failed to include a certificate of compliance in violation of Rule 28(j)(1)(B) 2 and (j)(2)(B). Furthermore, Defendant listed “Assignments of Error” in his brief, despite our Supreme Court abolishing assignments of error for all appeals filed on or after 1 October 2009.
As for Defendant's arguments regarding the summary judgment order, we deem them abandoned. N.C. R.App. P. 28(a). Despite this Court's best efforts to decipher Defendant's arguments, we can discern no comprehensible argument regarding error the trial court committed in granting Plaintiff's summary judgment motion. Thus, we dismiss Defendant's appeal with respect to the summary judgment order.
We also dismiss Defendant's appeal with respect to the order dismissing his counterclaim and denying his motion to consolidate as we have no jurisdiction to hear these arguments.
Rule 3(c) of the Rules of Appellate Procedure provides for thirty days to file notice of appeal in a civil case. “Without proper notice of appeal, this Court acquires no jurisdiction.” Brooks v.. Gooden, 69 N.C.App. 701, 707, 318 S.E.2d 348, 352 (1984). The order dismissing Defendant's counterclaim and denying his motion to consolidate was entered 19 April 2012. Defendant's time to file notice of appeal closed on 21 May 2012, as 19 May 2012 was a Saturday. Defendant did not file notice of appeal until 22 May 2012. As such, Defendant has failed to comply with Rule 3(c), and we have no jurisdiction to hear his appeal. Defendant has not filed a petition for writ of certiorari, and we decline to exercise our discretion to treat Defendant's argument as a petition for writ of certiorari.
We dismiss Defendant's arguments regarding the award of attorney's fees to Plaintiff. In the order granting the motion for sanctions, the trial court found that Plaintiff's counsel had performed services justifying an award of attorney's fees but then stated “[t]he [c]ourt at this time does not grant or deny counsels [sic] request for attorneys [sic] fees.” The trial court entered a conclusion of law that the motion for sanctions should be granted but “retain [ed] the right at a later date to grant or deny Plaintiff's request for attorneys fee [sic].” Thus, it appears that the trial court did not award attorney's fees to Plaintiff, and Defendant cannot appeal from a nonexistent award. Even if the trial court awarded attorney's fees, it did so in the same order dismissing Defendant's counterclaim and denying the motion to consolidate, and we have found the notice of appeal from that order to be untimely.
Defendant also makes miscellaneous arguments regarding orders from the 08 CVD 9006 case. We have no jurisdiction to hear these arguments either. First, a purported notice of appeal from orders entered in 08 CVD 9006 would be several years late. Second, Defendant's notice of appeal to this Court does not designate the orders from 08 CVD 9006 that he lists in his various “Assignments of Error.” This violates Appellate Rule 3(d) and fails to confer jurisdiction upon this Court. See Brooks, 69 N.C.App. at 707, 318 S.E.2d at 352.
For the reasons stated above, we dismiss Defendant's appeal.
DISMISSED. Judges STROUD and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).