Hill ex rel. Hill v. West

Decision Date04 April 2006
Docket NumberNo. COA05-815.,COA05-815.
CourtNorth Carolina Court of Appeals
PartiesHayden HILL, a minor, By and Through his Guardian Ad Litem, Harvey Gene HILL, Jr. and Regina Hill, individually and as parent and natural guardian of the minor, Hayden Hill, Plaintiffs, v. Teresa Henson WEST, C.F. West, Inc., Charles F. West, Sr., Annette West, Charles F. West, Jr. and Richard Lester, Defendants.

Lucas, Bryant, Denning & Ellerbe, P.A., by Sarah Ellerbe, Selma, for plaintiff-appellants.

Bailey & Dixon, L.L.P., by Patricia P. Kerner, Kenyann Brown Stanford, Raleigh, for defendant-appellees.

SMITH, Judge.

Harvey Gene Hill, Jr., Regina Hill and Hayden Hill (collectively plaintiffs) appeal from orders entered 28 October 2003 and 19 April 2005. The 28 October 2003 order dismissed with prejudice the actions against C.F. West, Inc., Charles F. West, Sr. and Annette West. The 19 April 2005 order is a consent order which dismissed without prejudice the action against Teresa Henson West.

This litigation arose as a result of a traffic accident occurring when defendant Teresa Henson West, who was intoxicated, crossed over a highway median while driving a van owned by defendant C.F. West, Inc. A detailed summary of the facts from our unpublished opinion can be found at Hill v. West, 168 N.C.App. 595, 608 S.E.2d 416, 2005 N.C.App. LEXIS 327 (unpublished) (February 15, 2005) (First Appeal-Hill I).

Plaintiffs instituted this action on 16 October 2002, seeking damages for personal injuries arising from the motor vehicular accident 21 January 2001 involving Teresa Henson West. Plaintiffs' original complaint included causes of action for negligence against defendant Teresa Henson West for negligent operation of a van owned by defendant C.F. West, Inc. and causes of action against C.F. West, Inc., Charles F. West, Sr., Annette West, and Charles F. West, Jr. for negligent entrustment of the van to Teresa Henson West.

On 18 December 2002, plaintiffs amended their complaint to include Richard Lester, an employee of C.F. West, Inc., who left keys to the van in the unlocked vehicle parked at the home of Charles F. West, Sr. and Annette West. On 19 December 2002, defendants denied the allegations of negligence and filed a motion to dismiss the amended complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief might be granted. On 17 February 2003, defendants' 12(b)(6) motion to dismiss was granted as to Charles F. West, Jr. and Richard Lester, but denied as to all remaining defendants. On 28 October 2003, the Honorable Knox V. Jenkins entered summary judgment for defendants C.F. West, Inc., Charles F. West, Sr. and Annette West. On 15 February 2005, this Court filed its unpublished opinion that the First Appeal was interlocutory and that no substantial right would be lost by plaintiffs in the absence of an immediate appeal. Hill I. This Court also stated in Hill I that "[p]laintiffs' brief in violation of Rule 28(b)(4), fail[ed] to include a statement of grounds for appellate review[.]" Id. On 19 April 2005, Judge Jenkins signed and entered a consent order dismissing the remaining claims against defendant Teresa Henson West without prejudice, "thereby resolving all claims against all remaining defendants."

Plaintiffs appeal the order entered 28 October 2003 which dismissed with prejudice the action against C.F. West, Inc., Charles F. West, Sr. and Annette West. Plaintiffs' notice of appeal indicates they also appeal from the consent order dated 19 April 2005. Because plaintiffs fail to assign error to the April 2005 consent order, or argue this issue in their brief on appeal, we deem this matter abandoned as it is not entitled to appellate review. N.C.R.App. P. 28(b)(6) ("Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.").

Once again, plaintiffs' brief has no statement of the grounds for appellate review in violation of Rule 28(b)(4) of the North Carolina Rules of Appellate Procedure. N.C.R.App. P. 28(b)(4). This Court may vary the requirements of the Rules of Appellate Procedure to "prevent manifest injustice." N.C.R.App. P. 2. Our Supreme Court has stated that "Rule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances." Steingress v. Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)). This Court has repeatedly held that "`there is no basis under Appellate Rule 2 upon which we should waive [] violations of Appellate Rules . . . .'" Holland v. Heavner, 164 N.C.App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms v. Sessoms, 76 N.C.App. 338, 340, 332 S.E.2d 511, 513 (1985)).

This Court in Hill I, admonished plaintiffs for failing to include a statement of the grounds for appellate review, and dismissed that appeal as interlocutory. Our review in the present case fails to establish any "exceptional circumstances," "significant issues," or "manifest injustice" to warrant suspension of the Appellate Rules and we decline to reach the merits of the case under Rule 2. Our Supreme Court has recently stated "[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 v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (citing Bradshaw v. Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)).

In addition, we believe that by entering into the consent order as to Teresa Henson West, counsel are manipulating the Rules of Civil Procedure in an attempt to appeal the 2003 summary judgment that otherwise would not be appealable.

Rule 54(a) of the North Carolina Rules of Civil Procedure provides that "[a] judgment is either interlocutory or the final determination of the rights of the parties." N.C. Gen. Stat. § 1A-1, Rule 54(a)(2005). Subsection (b) allows appeal if the specific action of the trial court from which appeal is taken is final. N.C. Gen.Stat. § 1A-1, Rule 54(b)(2005). The Rules of Civil Procedure permit a plaintiff to take one voluntary dismissal on an action "by filing a notice of dismissal at any time before the plaintiff rests his case, or [] by filing a stipulation of dismissal signed by all parties[.]" N.C. Gen.Stat. § 1A-1, Rule 41(a)(1) (2005).

When plaintiffs originally appealed from the order granting summary judgment to defendants C.F. West, Inc., Charles F. West, Sr., and Annette West, we dismissed the appeal as interlocutory because the underlying lawsuit was still pending with respect to Teresa...

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16 cases
  • Stann v. Levine
    • United States
    • North Carolina Court of Appeals
    • November 7, 2006
    ...the statement of grounds for appellate review or citation of any statute permitting such review. See, e.g., Hill v. West, ___ N.C.App. ___, ___, 627 S.E.2d 662, 664 (2006) (dismissing the appeal because the appellant failed to include a statement of grounds for appellate review and no final......
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    ...Defendants, however, ask us to dismiss Plaintiffs' appeal as interlocutory, based on the holding in a recent case, Hill v. West, 177 N.C.App. 132, 627 S.E.2d 662 (2006). Hill, following dismissal of plaintiffs' appeal from partial summary judgment as interlocutory, appellants took a volunta......
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