Opinion
No. COA04-1651
Filed 1 November 2005 This case not for publication
Appeal by plaintiff from judgment entered 28 June 2004 by Judge Kenneth F. Crow in Carteret County Superior Court. Heard in the Court of Appeals 20 September 2005.
Peter Wendt, plaintiff-appellant, pro se. Claud R. Wheatly, III for defendants-appellees.
Carteret County No. 03 CVS 1370.
Plaintiff Peter Wendt appeals from entry of summary judgment in favor of defendants. We dismiss the appeal.
Plaintiff filed suit against defendants in December 2003. His complaint alleged misconduct by Carteret County Deputy Sheriffs Roy Gittings and Bill O'Brien, and respondeat superior liability of Sheriff Ralph Thomas, Jr. He sought certain declarations by the court, as well as $10,000 from defendant Travelers Bond, the suretyon Sheriff Thomas's bond. On 15 April 2004 defendants filed a motion for summary judgment, which was granted on 28 June 2004. Plaintiff appeals from this order.
We first review several pertinent Rules from the North Carolina Rules of Appellate Procedure. N.C.R. App. P. 10 provides in relevant part that:
(a) [T]he 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. . . .
(c) (1) 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. . . .
(emphasis added). And N.C.R. App. P. 28(b)(6) requires that "[i]mmediately following each question shall be a reference to 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."
Plaintiff herein set out two assignments of error:
1. The trial court committed reversible error in granting Appellees Summary Judgment as the facts, evidence, exhibits, affidavits, pleadings and other matters of record Appellee relies upon is [sic] legally and factually insufficient to support summary judgment, as a matter of law, as a genuine question of law on the indisputable facts is in controversy and as material facts are in dispute.
2. The trial court committed reversible error in granting Appellees Summary Judgment as North Carolina law does not sanction Trespass.
Plaintiff's assignments of error are in substantial violation of N.C.R. App. P. 10(c)(1). They are not "confined to a single issue of law"; do not state "plainly, concisely and without argumentation the legal basis upon which error is assigned"; and do not include "record or transcript references."
Plaintiff's first assignment of error purports to assign error to almost every aspect of the case in a single assignment of error. "Such an assignment of error is designed to allow counsel to argue anything and everything they desire in their brief on appeal. `This assignment — like a hoopskirt — covers everything and touches nothing.'" Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005) (quoting State v. Kirby, 276 N.C. 123, 131, 171 S.E.2d 416, 422 (1970)). In addition, plaintiff's second assignment of error fails to allege any legal error. Plaintiff's statement that "North Carolina law does not sanction Trespass" simply alleges a state policy, but does not set out any error by the trial court.
Plaintiff also violated N.C.R. App. P. 28(b)(6), in that the questions presented in his brief are not followed by "reference to 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." The North Carolina Supreme Court recently addressed the issue of an appellant's violation of the Rules of Appellate Procedure:
The North Carolina Rules of Appellate Procedure are mandatory and "failure to follow these rules will subject an appeal to dismissal." In the instant case, plaintiff has failed to comply with Rule 10 and Rule 28(b). . . . [T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 402, 610 S.E.2d 360, 360-61 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999), and citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)).
Because plaintiff's appeal is in substantial violation of the North Carolina Rules of Appellate Procedure, his appeal is
Dismissed.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).