Viar v. North Carolina Dept. of Transp.
| Decision Date | 07 April 2005 |
| Docket Number | No. 109A04.,109A04. |
| Citation | 610 S.E.2d 360,359 N.C. 400 |
| Parties | Claude M. VIAR, Jr., Co-administrator of the Estate of Megan Rae Viar, Deceased, and Co-administrator of the Estate of Macey Lauren Viar, Deceased v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION. |
| Court | North Carolina Supreme Court |
DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, Charlotte, for plaintiffs-appellees.
Roy Cooper, Attorney General, by William H. Borden, Special Deputy Attorney General, Robert T. Hargett, Special Deputy Attorney General, and Ann Reed, Senior Deputy Attorney General, for the defendant-appellant.
On appeal to this Court, defendant contends that plaintiff's appeal should be dismissed in accordance with Judge Tyson's dissenting opinion in the Court of Appeals for violation of the Rules of Appellate Procedure. We agree.
The North Carolina Rules of Appellate Procedure are mandatory and "failure to follow these rules will subject an appeal to dismissal." Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999). In the instant case, plaintiff has failed to comply with Rule 10 and Rule 28(b). With respect to assignments of error, Rule 10(c) provides the following:
(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.
N.C. R.App. P. 10(c)(1). In this case, plaintiff presented two assignments of error, neither of which was numbered or made specific record references. Moreover, the second stated assignment of error did not "state plainly, concisely and without argumentation the legal basis upon which error [was] assigned."
With respect to an appellant's brief, Rule 28(b) requires the following:
(6) An argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated. Immediately 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. 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.
N.C. R.App. P. 28(b)(6). Plaintiff made no argument as to the first stated assignment of error in his brief to the Court of Appeals. Thus, this assignment of error is deemed abandoned under Rule 28(b)(6). Nevertheless, plaintiff's brief in the Court of Appeals refers...
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