Summary
dismissing assignment of error which failed to set forth a legal issue for determination
Summary of this case from State v. BinghamOpinion
No. COA05-103.
Filed January 17, 2006.
Appeal and Error — appellate rules violations — failure to limit scope of review — failure to give adequate notice
Plaintiff's appeal is dismissed for failure to comply with N.C. R. App. P. 10(c)(1), because: (1) plaintiff's single assignment of error without record references does not set forth a legal issue for determination and does no more than duplicate the notice of appeal which does not serve its function of limiting the scope of review; (2) appellee did not receive adequate notice of the basis upon which the appeal might be resolved; and (3) the Court of Appeals cannot invoke N.C.R.App.P. 2 as a means of addressing issues not raised by an appellant.
Judge WYNN concurring in the result.
Appeal by plaintiff from order entered 7 October 2004 by Judge Jane V. Harper in Mecklenburg County District Court. Heard in the Court of Appeals 18 October 2005.
Timothy M. Stokes for plaintiff-appellant. Susan V. Thomas for defendant-appellee.
"The North Carolina Rules of Appellate Procedure are mandatory and `failure to follow these rules will subject an appeal to dismissal.'" Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). In this case, plaintiff Gerald S. Broderick has failed to comply with Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure, and we therefore dismiss his appeal.
Rule 10(c) of the North Carolina Rules of Appellate Procedure states in relevant part:
(1) Form; Record references. A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal, in short form without argument, and shall be separately numbered. Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.
In this case, Mr. Broderick included a single assignment of error in the record on appeal, stating only, "Plaintiff-Appellant assigns as error the following: Entry of the Order for Modification of Alimony filed October 7, 2004." No record references follow this statement.
Contrary to Rule 10(c), Mr. Broderick's assignment of error does not set forth a legal issue for our determination. See, e.g., Dep't of Transp. v. Rowe, 353 N.C. 671, 674, 549 S.E.2d 203, 207 (2001) (alleged error "not properly presented" to this Court where plaintiff failed to comply with "Rule 10(c) of the North Carolina Rules of Appellate Procedure [which] requires that an appellant state the legal basis for all assignments of error"), cert. denied, 534 U.S. 1130, 151 L. Ed. 2d 972, 122 S. Ct. 1070 (2002). Indeed, the assignment of error does no more than duplicate the notice of appeal and, thus, also does not serve its function of limiting our scope of review. N.C.R. App. P. 10(a) ("Except as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10.").
Viar prohibits this Court from invoking Rule 2 of the Rules of Appellate Procedure as a means of addressing issues not raised by the appellant. Doing so would amount to "creat[ing] an appeal for an appellant" and leaves an appellee "without notice of the basis upon which an appellate court might rule." Viar, 359 N.C. at 402, 610 S.E.2d at 361. Because Mr. Broderick's assignment of error in this case sets out no legal basis for arguing error, it gives rise to the same problem addressed in Viar. The assignment of error places no limit on the legal issues that could be addressed on appeal and the appellee fails to receive adequate notice of the basis upon which the appeal might be resolved. We are, therefore, compelled by Viar to dismiss this appeal based on Mr. Broderick's failure to comply with Rule 10(c)(1).
Dismissed.
Judge McGEE concurs.
Judge WYNN concurs in result with separate opinion.