Opinion
No. 05-970.
Filed May 16, 2006.
Guilford County No. 03 CVS 11607.
Appeal by plaintiffs from order entered 7 January 2005 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 9 March 2006.
J. Michael Thomas for plaintiffs-appellants. Hicks McDonald Noecker LLP, by David W. McDonald, for defendants-appellees.
David and Janice Lincoln (plaintiffs) appeal from entry of summary judgment in favor of defendants Nancy Bueche and Jason Forbes. We dismiss plaintiffs' appeal.
This case arises out of plaintiffs' August 2000 purchase of a house in Greensboro, North Carolina from defendant Bueche. On 1 November 2001 plaintiffs filed a complaint against defendants, which they voluntarily dismissed on 5 December 2002. Plaintiffs refiled their lawsuit on 23 October 2003, bringing claims against Bueche for breach of contract, breach of implied warranty of habitability and workmanship, and unfair and deceptive trade practices; and against Forbes for unfair and deceptive trade practices. Defendants filed a motion for summary judgment, which was granted by the trial court on 7 January 2005. Plaintiffs have appealed from this order.
"Turning to the facts of the present case, we note this appeal arises from an order granting summary judgment. Our review is therefore de novo. The trial court should grant summary judgment `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" McCutchen v. McCutchen, 360 N.C. 280, 285-86, 624 S.E.2d 620, 625 (2006) (quoting N.C. Gen. Stat. §§ 1A-1, Rule 56(c) (2005)) (citation omitted).
Under N.C.R. App. P. 10:
(a) . . . [T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10. . . .
(c) (1) . . . 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.
N.C.R. App. P. 10(a) and (c)(1). "One purpose of this rule is to `identify for the appellee's benefit all the errors possibly to be urged on appeal . . . so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.'" State v. Baggett Penuel, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999) (quoting Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988)). "In addition, Rule 10 allows our appellate courts to `fairly and expeditiously' review the assignments of error without making a `voyage of discovery' through the record in order to determine the legal questions involved." Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998) (quoting Kimmel, 92 N.C. App. at 335, 374 S.E.2d at 437). Thus, assignments of error that are "broad, vague, and unspecific . . . do not comply with the North Carolina Rules of Appellate Procedure[.]" In re Appeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002). "Moreover, it is long settled that the `scope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant's brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.'" Walker v. Walker, ___ N.C. App. ___, ___, 624 S.E.2d 639, 641 (2005) (quoting Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)) (citation omitted).
In Hubert Jet Air, LLC v. Triad Aviation, Inc., ___ N.C. App. ___, ___ S.E.2d ___, ___ (COA05-725, filed 2 May 2006), the plaintiff assigned error to the "trial court's partial granting of the Defendants' Motion for Summary Judgment as to Counts 3 through 8." This Court held that the assignment of error
[does not] provide any legal basis for the error alleged. Nor do any of the record references serve to provide this Court with any additional understanding of the legal basis for the alleged errors. These assignments of error `essentially amount to no more than an allegation that `the court erred because its ruling was erroneous.'a Id. (quoting Walker, ___ N.C. App. at ___, 624 S.E.2d at 642). "Such an assignment of error is designed to allow counsel to argue anything and everything they desire in their brief on appeal. `This assignment — like a hoop skirt — covers everything and touches nothing.'" Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005) (quoting State v. Kirby, 276 N.C. 123, 131, 171 S.E.2d 416, 422 (1970)).
In the instant case, plaintiffs' sole assignment of error assigns error to the trial court's order of summary judgment on the grounds that the record before the trial court was insufficient to support the trial court's determination that there was no genuine issue as to any material fact, the trial court erred in concluding such as a matter of law, and the granting of summary judgment was legal error prejudicial to the Plaintiffs.
The instant case is functionally indistinguishable from Hubert and cases cited therein. We also note that the record includes close to 1000 pages of deposition testimony and exhibits, and that plaintiffs' assignment of error does not direct the appellee or this Court to any particular page or section of the record.
We conclude that plaintiffs' assignment of error fails to comply with Rule 10 of the North Carolina Rules of Appellate Procedure, and thus does not preserve for appellate review the issues briefed on appeal. Plaintiffs' failure to follow the North Carolina Rules of Appellate procedure subjects their appeal to dismissal:
The Rules of Appellate Procedure are mandatory, and `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.' `Failure to follow these rules will subject an appeal to dismissal.'Wilson v. Burch Farms, Inc., ___ N.C. App. ___, ___, 627 S.E.2d 249, 256 (2006) (quoting Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 361, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), and Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C. App. 684, 686, 613 S.E.2d 518, 520 (2005)) (internal citation omitted).
Dismissed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).