Onslow County v. Moore

• Citation: 127 N.C.App. 546,491 S.E.2d 670
• Decision Date: 21 October 1997
• Docket Number: COA97-35,COA97-33,Nos. COA97-32,s. COA97-32
• Court: Court of Appeal of North Carolina (US)
• Parties: ONSLOW COUNTY, Appellee-Plaintiff, v. Gene MOORE, Appellant-Defendant. Kimberly McKILLOP, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant. Patricia TREANTS, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant.

Page 670

491 S.E.2d 670

127 N.C.App. 546

ONSLOW COUNTY, Appellee-Plaintiff, v. Gene MOORE, Appellant-Defendant.

Kimberly McKILLOP, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant.

Patricia TREANTS, Appellant-Plaintiff, v. ONSLOW COUNTY, Appellee-Defendant.

Nos. COA97-32, COA97-33, COA97-35.

Court of Appeals of North Carolina.

Oct. 21, 1997.

Jeffrey S. Miller, Jacksonville, for appellants Moore, McKillop and Treants.

Shipman & Associates, L.L.P. by Gary K. Shipman, Carl W. Thurman, III, and C. Wes Hodges, II, Wilmington, for appellee Onslow County.

SMITH, Judge.

Appellants Gene Moore, Kimberly McKillop, and Patricia Treants (collectively "appellants") each own businesses alleged to be in violation of an ordinance of appellee Onslow County ("the County") entitled "Ordinance to Regulate Adult Businesses and Sexually Oriented Businesses in Onslow County, NC." ("the ordinance"). In No. 95 CvS 2836, the County filed an action against Moore seeking injunctive relief ordering him to comply with the ordinance. Moore appeals an order finding him in contempt of a preliminary injunction entered 26 March 1996. McKillop and Treants filed separate actions against the County seeking a declaration that the ordinance was invalid and unconstitutional. McKillop and Treants appeal judgments dismissing their claims with prejudice and permanently enjoining them from violating the ordinance. The County also appeals from the portion of the judgments declaring the ordinance partially preempted by N.C. Gen.Stat. § 14-202.11 (1993). This Court, upon its own initiative, has consolidated the appeals in these cases due to the common questions presented.

We take this opportunity to remind our colleagues in the bar and on the bench that our Rules of Appellate Procedure are mandatory and violations thereof subject an appeal to dismissal. Adams v. Kelly Springfield Tire Co., 123 N.C.App. 681, 682, 474 S.E.2d 793, 794 (1996). Each appellant in the instant cases, including the County, has failed to comply with the Rules of Appellate Procedure and their appeals are dismissed.

N.C.R.App. P. 11(c) states that

[w]ithin 21 days ... after service upon him of appellant's proposed record on appeal, an appellee may serve upon all other parties specific amendments or objections to the proposed record on appeal, or a proposed alternative record on appeal....

If any appellee timely files amendments, objections, or a proposed alternative record on appeal, the appellant or any other appellee, within 10 days after expiration of the time within which the appellee last served might have filed, may in writing request the judge from whose judgment, order, or other determination appeal was taken to settle the record on appeal.

N.C.R.App. P. 11(c) further states that a hearing shall be held to settle the record on appeal no later than 15 days after service of the request for hearing upon the trial court, and the trial court shall settle the record on appeal by order entered not more than 20 days after service of the request for hearing.

Here, appellants filed notices of appeal and served proposed records on appeal in their respective actions on 3 July 1996. The County filed its notice of appeal on 30 July 1996. Giving the parties the benefit of every doubt, appellants records on appeal should have been settled, judicially or otherwise, by the end of September 1996. The County's record on appeal should have been settled judicially or otherwise by mid-November 1996. While the records are devoid of any documentation showing judicial settlement of the records on appeal, each appeal contains an order entered by Judge James R. Strickland on 6 January 1997 granting appellants' motions...