Opinion
No. COA10-492
Filed 5 April 2011 This case not for publication
Appeal by Plaintiff from judgment entered 12 January 2010 by Judge James E. Hardin, Jr. in Superior Court, Wake County. Heard in the Court of Appeals 1 November 2010.
Yaodong Ji, Plaintiff-Appellant, pro se.
Young Moore and Henderson P.A., by Walter E. Brock, Jr. and Patrick M. Aul, for Defendant-Appellee.
Wake County, No. 08 CVS 21972.
Yaodong Ji (Plaintiff) filed a pro se complaint against Johnny S. Gaskins (Defendant) on 16 December 2008. Defendant, an attorney, represented Plaintiff in a criminal matter that was initiated after Plaintiff's estranged wife alleged that Plaintiff had raped her in March of 2005. Defendant negotiated an arrangement with Plaintiff's wife whereby she agreed to request that the State dismiss the rape charge against Plaintiff if Plaintiff agreed to certain terms in a civil suit involving Plaintiff and his wife. It was understood that the State would dismiss the criminal charge against Plaintiff upon the request of Plaintiff's wife. Plaintiff agreed to these terms and signed a memorandum of settlement. Plaintiff's wife requested that the criminal charge against Plaintiff be dismissed, and the State dismissed the charge.
Plaintiff filed an action on 17 March 2008 against the City of Raleigh, the Raleigh Police Department, and two individuals employed by the Raleigh Police Department in which he alleged that the defendants had improperly pursued a rape charge against him and had also committed other injurious acts against him. Plaintiff's action was dismissed by the trial court for procedural and jurisdictional reasons. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 60, Plaintiff filed a motion for relief from judgment on 17 December 2008. The trial court denied Plaintiff's motion, and Plaintiff appealed. This Court affirmed the trial court in Ji v. City of Raleigh, ___ N.C. App. ___, 699 S.E.2d 142, 2010 N.C. App. LEXIS 1764 (2010).
Plaintiff filed the present action against Defendant on 16 December 2008, alleging three "claims" for relief: (1) that Defendant's "intentional non-truthful information" resulted in Plaintiff's suffering "severe physical and mental pressure and distress resulting in damages in excess of" $10,000.00; (2) that Defendant's negligence resulted in Plaintiff's arrest in September 2005 and caused Plaintiff "severe emotional distress and physical uneasy resulting in damages in excess of" $10,000.00; and (3) that Defendant's negligent and reckless conduct resulted in Plaintiff's being unable to "focus in his work since [Plaintiff's prior] case . . . settled in July, 2006[,]" and that Plaintiff was entitled to a recovery for "loss of work and business in excess of" $10,000.00. Plaintiff also alleged that each claim against Defendant involved "willful, wanton, [and] reckless" conduct and entitled Plaintiff to punitive damages. Defendant moved for summary judgment for all three of Plaintiff's claims on 11 December 2009. In an order entered 12 January 2010, the trial court granted summary judgment in favor of Defendant and dismissed all of Plaintiff's claims. The record contains a notice of appeal dated 8 January 2010, purportedly from "the order entered on January 6, 2010[.]" There is no file-stamp on the notice of appeal. According to Plaintiff's brief, the summary judgment motion was heard on 6 January 2010, though we can locate nothing in the record to support this. "Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court." N.C. Gen. Stat. § 1A-1, Rule 58 (2009).
We hold that Plaintiff has failed to properly preserve his appeal for review and, therefore, dismiss Plaintiff's appeal.
First, the notice of appeal contained in the record was not file-stamped by the Wake County Clerk of Court. Without a file stamp, we have no way to confirm that Plaintiff's notice of appeal was filed, much less timely filed. The failure to include a file-stamped notice of appeal in the record violates Rule 3 of the North Carolina Rules of Appellate Procedure. "Without proper notice of appeal, this Court acquires no jurisdiction." Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984). Plaintff's appeal must be dismissed for this reason. Id.; see also In re D.L.M., ___ N.C. App. ___, 702 S.E.2d 555, 2010 N.C. App. LEXIS 2341 (2010).
Second, Plaintiff's notice of appeal does not refer to the order from which it purports to appeal. This defect may divest this Court of jurisdiction and require dismissal of Plaintiff's appeal. Von Ramm v. Von Ramm, 99 N.C. App. 153, 155-57, 392 S.E.2d 422, 424-25 (1990).
Third, even assuming arguendo that the defects in Plaintiff's notice of appeal do not divest our Court of jurisdiction to address his appeal, other violations of our Rules of Appellate Procedure do require dismissal of Plaintiff's appeal.
"The Rules of Appellate Procedure are mandatory; failure to comply with these rules subjects an appeal to dismissal. Furthermore, these rules apply to everyone — whether acting pro se or being represented by all of the five largest law firms in the state." Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999). Rule 28(b) of the North Carolina Rules of Appellate Procedure requires that an appellant's brief contain the following relevant sections:
(5) A full and complete statement of the facts. This should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all issues presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be.
(6) An argument, to contain the contentions of the appellant with respect to each issue presented. Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.
The argument shall contain a concise statement of the applicable standard(s) of review for each issue, which shall appear either at the beginning of the discussion of each issue or under a separate heading placed before the beginning of the discussion of all the issues.
The body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies. Evidence or other proceedings material to the issue may be narrated or quoted in the body of the argument, with appropriate reference to the record on appeal, the transcript of proceedings, or exhibits.
N.C.R. App. P. 28(b) (2009). Plaintiff's recitation of the facts does not contain all the material facts necessary to understand all the issues presented. More relevant, however, is that the section of Plaintiff's brief entitled "arguments" contains no legal arguments in support thereof. Further, Plaintiff cites no authority in support of his "arguments." In Plaintiff's entire brief, the only legal authority he cites is one statute in the "grounds for appellate review" section and four appellate opinions in the standard of review section where Plaintiff presents the standard of review for summary judgment. Plaintiff includes no standard of review for the individual "claims" against Defendant that Plaintiff argues were improperly dismissed by the trial court. Plaintiff does not lay out the elements for his "claims," nor does he argue how the facts were sufficient to support each element and survive summary judgment. Because Plaintiff makes no legal argument in support of his contention that the trial court erred in granting summary judgment in Defendant's favor and because Plaintiff does not cite any authority in support of his contentions, Plaintiff has abandoned all his arguments on appeal. N.C.R. App. P. 28(b)(6); Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 367 (2008). We, therefore, dismiss Plaintiff's appeal.
Additionally, we have reviewed this case on its merits and conclude that the trial court did not err in granting summary judgment for Defendant.
Dismissed.
Panel Consisting of:
Chief Judge MARTIN, Judges McGEE and ERVIN.
Report per Rule 30(e).