Opinion
No. 05-317.
Filed February 7, 2006.
Stokes County No. 02 CVD 312.
Appeal by defendants from order entered 9 September 2004 by Judge Spencer G. Key, Jr., in Stokes County District Court. Heard in the Court of Appeals 6 December 2005.
STOVER BENNETT, by Michael R. Bennett, for plaintiff-appellee. TEETER LAW FIRM, by Kelly Scott Lee, for defendants-appellants.
Dennis Paul Culler ("Dennis"), Mitzi Lynn Culler ("Mitzi"), and Viola McKnight Whitley ("Whitley") (collectively, "defendants") appeal the trial court order granting summary judgment in favor of Burrow Farms ("plaintiff"). For the reasons discussed herein, we dismiss the appeal.
The facts and procedural history pertinent to the instant appeal are as follows: In 1952, Lelia James McKnight ("Lelia") owned approximately 46.59 acres of land located in Stokes County, North Carolina. On 9 June 1952, Lelia conveyed 13.77 acres of the land to Homer Burrow ("Homer") and his wife, Irene Burrow ("Irene"). On 21 June 1973, Lelia's heirs conveyed the remaining 32.82 acres of the land to Whitley and her husband. Whitley and her husband subsequently conveyed 1.124 acres of their land to Dennis and Mitzi, and on 21 March 2001, after Homer's death, Irene conveyed her 13.77 acres of land to plaintiff.
On 15 May 2002, plaintiff filed a complaint against defendants, seeking to establish an easement by necessity over defendants' lands. In its complaint, plaintiff alleged the only means of access to its 13.77 acre tract was by way of an old farm road ("the roadway") which crossed defendants' lands. Although plaintiff admitted the roadway was not referred to as an express easement in the tract's title, plaintiff alleged the roadway's existence in 1952, coupled with its essential and continuous use, established an easement by necessity over defendants' lands.
On 19 July 2002, defendants filed an answer denying the allegations of plaintiff's complaint and asserting Homer and Irene "owned other property that adjoined the 13.77 acres . . . [which] afford[ed] them access" to the tract and plaintiff "already ha[s] access [to the tract] over other property that [it] already own[s]." Although defendants admitted "some sort of pathway may have existed at the time the 13.77 acres was conveyed to [Homer and Irene]," they asserted that roadway was "no more than a tractor path" and the current roadway had not been used "`openly and continuously' for access to [plaintiff's] property" but instead was "obstructed by a building that stands in the southeastern most corner of [Dennis and Mitzi's] property."
On 10 March 2003, plaintiff filed a motion for summary judgment. After reviewing the parties' pleadings, depositions, answers to interrogatories, admissions, and affidavits, the trial court concluded "[t]here is no genuine issue of material law or fact concerning [plaintiff's] establishment of an easement by necessity upon the real properties of [defendants]." Accordingly, on 9 September 2004, the trial court entered an order allowing plaintiff to use the roadway "for purposes of ingress, egress and regress to the 13.77 acre tract. . . ." Defendants appeal.
Rule 28(b) of the North Carolina Rules of Appellate Procedure sets forth the guidelines regarding the format of an appellant's brief. Subsection (b)(4) requires each appellant's brief contain "[a] statement of the grounds for appellate review[,]" and it further provides that "[s]uch statement shall include citation of the statute or statutes permitting appellate review." N.C.R. App. P. 28(b)(4) (2005). Subsection (b)(5) requires each appellant's brief also contain "[a] full and complete statement of the facts[,]" which "should be a non-argumentative summary of all material facts underlying the matter in controversy. . . ." N.C.R. App. P. 28(b)(5). Subsection (b)(6) requires that "[i]mmediately following each question" presented in an appellant's brief, the appellant "shall . . . reference . . . the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal." N.C.R. App. P. 28(b)(6). This Court has previously noted that "[t]he Rules of Appellate Procedure are designed to expedite appellate review and [an appellant's] failure to observe the requirements of the Rules subjects their appeal to dismissal." Anthony v. City of Shelby, 152 N.C. App. 144, 146, 567 S.E.2d 222, 225 (2002) (citations omitted). Similarly, our Supreme Court has held that "[t]he 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, 361 (per curiam) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)), reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005).
In the instant case, defendants make the following assignments of error on appeal:
I. Did the trial court err in granting Plaintiff's Motion For Summary Judgment and allowing the creation of an implied easement by necessity when there existed a genuine issue of material fact between the parties that would necessitate a jury trial? (Rp. at 91-96)
II. Did the trial court err in granting Plaintiff's Motion For Summary Judgment and allowing the creation of an implied easement by necessity when Plaintiff had alternate access to Slate Road such that would not require the creation of an implied easement? (Rp. at 91-96)
Assuming arguendo these assignments of error satisfy the requirements of N.C.R. App. P. 10, we note defendants' brief nevertheless violates several requirements of N.C.R. App. P. 28(b). Defendants' brief does not contain the "statement of the grounds for appellate review" required by Rule 28(b)(4), nor does it contain any "citation [to] the statute or statutes permitting appellate review." Further, although defendants' brief contains the "statement of the facts" required by Rule 28(b)(5), the factual statement contains several argumentative and conclusory statements in violation of that Rule. Finally, defendants present the following two issues in the argument section of their brief:
I. The trial court erred in granting plaintiff's motion for summary judgment where genuine issues of material fact existed as to whether an easement by necessity is necessary when alternative routes over the plaintiff's land exist to access the plaintiff's 13.77 acre tract of land.
II. The trial court erred in granting plaintiff's motion for summary judgment when a genuine issue of material fact existed as to whether the plaintiffs abandoned an implied easement by allowing the roadway to become overgrown and impassable, by defendant's garage and no trespassing signs obstructing the roadway, and by the plaintiff asking for defendant's permission to use the roadway.
Neither of these issues identifies the corresponding assignments of error "by their numbers," nor do they identify the corresponding assignments of error "by the pages at which they appear in the printed record on appeal." N.C.R. App. P. 28(b)(6). Based upon these Appellate Rules violations, we dismiss defendants' appeal.
We recognize this Court has previously acknowledged such violations but nevertheless reached the merits of appeals by invoking our discretionary power under Rule 2. See, e.g., Anthony, 152 N.C. App. at 146, 567 S.E.2d at 225 (invoking Rule 2 to address merits of appeal despite violations of N.C.R. App. P. 10(c)(1) and 28(b)(6)); N.C.R. App. P. 2 (2005) ("To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may . . . suspend or vary the requirements or provisions of any of these rules. . . ."). However, we also note our Supreme Court has recently reiterated that "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant. . . . [T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless[.]" Viar, 359 N.C. at 402, 610 S.E.2d at 361. Thus, notwithstanding the argument that defendants' Rules violations do not "impede comprehension of the issues on appeal or frustrate the appellate process[,]" see id., we must dismiss defendants' appeal.
Appeal Dismissed.
Judge STEELMAN concurs.
Judge WYNN concurs in the result with a separate opinion.
Report per Rule 30(e).
WYNN, Judge, concurring in the result.
For the reasons stated in my concurrence in Broderick v. Broderick, ___ N.C. App. ___, ___ S.E.2d ___ (COA05-103) (17 Jan. 2006), I concur in the result only.