IN THE SUPREME COURT OF NORTH CAROLINA
No. 109A04
FILED: 7 APRIL 2005
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
Appeal pursuant to N.C.G.S. §7A-30(2) from the decision of a divided panel of the Court of Appeals, 162 N.C. App. 362, 590 S.E.2d 909 (2004), reversing and remanding a decision and order entered by the North Carolina Industrial Commission on 20 August 2002. Heard in the Supreme Court 6 December 2004.
DeVore, Acton & Stafford, P.A., by Fred
W. DeVore, III, 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.
PER CURIAM.
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 to
assignment of error one and then to the pages of the record containing the
dissenting opinion in the Industrial Commission. Moreover, plaintiff’s second stated assignment of error purports
to challenge the Industrial Commission’s conclusion of law, but the arguments
in plaintiff’s brief in the Court of Appeals do not address the issue upon
which the Industrial Commission’s conclusion of law was based.
The
majority opinion in the Court of Appeals, recognizing the flawed content of
plaintiff’s appeal, applied Rule 2 of the Rules of Appellate Procedure to
suspend the Rules. The majority opinion then addressed the issue, not raised or
argued by plaintiff, which was the basis of the Industrial Commission’s
decision, namely, the reasonableness of defendant’s decision to delay
installation of the median barriers. The
Court of Appeals majority asserted that plaintiff’s Rules violations did not
impede comprehension of the issues on appeal or frustrate the appellate
process. Viar v. N.C. Dep’t of
Transp., 162 N.C. App. 362, 375, 590 S.E.2d 909, 919 (2004). It is not the role of the appellate courts,
however, to create an appeal for an appellant.
As this case illustrates, the 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. See Bradshaw v.
Stansberry, 164 N.C. 284, 164 N.C. 356, 79 S.E. 302 (1913).
For the
reasons stated herein and in that portion of the dissenting opinion in the
Court of Appeals addressing plaintiff’s violation of the Rules of Appellate
Procedure, plaintiff’s appeal should have been dismissed by the Court of
Appeals. The decision of the Court of
Appeals is vacated and plaintiff’s appeal is dismissed.
DISMISSED.