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Appeal and Error--assignments of error--argument--inadequate--appeal dismissed
An appeal was dismissed where one assignment of error failed to state the legal basis on
which error was assigned while the other assignment of error was not supported by argument.
Appeal by defendant from order filed 27 February 1998 by
Judge Wendy M. Enochs in Guilford County District Court. Heard
in the Court of Appeals 30 March 1999.
Diane Q. Hamrick, and Edward P. Hausle, P.A., by Edward P.
Hausle, for plaintiff-appellee.
Stephen E. Lawing for defendant-appellant.
GREENE, Judge.
Daniel A. Talley (Defendant) appeals from the trial court's
order commanding him to pay alimony and provide medical coverage
for Patsy W. Talley (Plaintiff).
The hearing of Plaintiff's alimony claim commenced on 28
July 1997, and was recessed on 30 July 1997. At that time, the
trial court: (1) mentioned Defendant's knowledge of its time
availability before the hearing began; (2) noted its own efforts
to expedite the hearing; and (3) invited both parties to meet
with it to reschedule the conclusion of the hearing. Neither
party met with the trial court during the recess of the case.
The case reconvened on 13 October 1997, and Defendant, in
open court, moved for a mistrial due to the trial delay. The
trial court denied this motion, noting Defendant's failure to
request an earlier trial date. The hearing was completed on 15October 1997, and the trial court entered its alimony order on 27
February 1998.
The record on appeal contains forty-three different
assignments of error. Defendant's brief to this Court presents
two "Questions": (1) "DID THE COURT COMMIT PREJUDICIAL ERROR IN
SIGNING AND ENTERING JUDGMENT AWARDING TO PLAINTIFF ALIMONY,
MEDICAL COVERAGE AND ATTORNEYS FEES?"; and (2) "DID THE TRIAL
COURT COMMIT PREJUDICIAL ERROR BY DENYING DEFENDANT'S MOTION OF
MISTRIAL, THEREBY DENYING DEFENDANT DUE PROCESS?"
Question number one is followed by reference to assignment
of error number thirty-eight, which reads, "The signing and entry
of judgment awarding to Plaintiff alimony, medical coverage, and
reserving the issue of attorney fees."
Question number two is followed by reference to assignment
of error number forty-one, which reads, "The denial of
Defendant's motion for mistrial on the grounds of delay of
proceeding resulting in denial of due process to Defendant." The
full content of Defendant's brief, with regard to Question number
two, provides:
There was a 75 day delay between the
initial trial date, July 30, 1997, when this
case was recessed, and the recessed date,
October 13, 1997.
In U.S. v. HALL, US Court of Appeals,
9th Circuit, No. 95-50609 (1997), where a
judge recessed a jury trial for 48 days, it
was held that this violated the Due Process
Clause of the U.S. Constitution, and the
judgment must be reversed regardless of
whether the defendant can show that he was
prejudiced as a result.
The dispositive issue is whether this appeal must be dismissed for failure to comply with the North Carolina Rules of Appellate Procedure (Rules).
The Rules provide that the scope of appellate review is "confined to a consideration of those assignments of error set out in the record on appeal in accordance with [Rule 10]." N.C.R. App. P. 10(a). Rule 10 requires that "[e]ach assignment of error shall . . . state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1); (See footnote 1) Rogers v. Colpitts, 129 N.C. App. 421, 499 S.E.2d 789 (1998). The function of the brief, as provided in Rule 28, is to provide an argument setting out the contentions of the parties with respect to each question presented. N.C.R. App. P. 28(b)(5). "Immediately following each question [presented] shall be a reference to the assignments of error pertinent to the question." Id. Assignments of error which are not supported by "reason or argument" in the brief "will be taken as abandoned." Id. These Rules are mandatory, and their violation subjects an appeal to dismissal. Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984).
In this case, assignment of error number thirty-eight failsto state the legal basis, or ground, on which error is assigned. Thus the argument asserted in Defendant's brief in response to Question number one and in support of assignment of error number thirty-eight is outside our scope of review and will not be considered.
Assignment of error number forty-one contains an adequate legal basis to support the error assigned. The statements made in Defendant's brief in response to Question number two and in support of assignment of error number forty-one, however, do not contain any argument. (See footnote 2) Accordingly, this assignment of error also is abandoned. Defendant's remaining forty-one assignments of error are abandoned because they are neither set out nor referenced in his brief.
Appeal dismissed.
Judges MARTIN and MCGEE concur.
Footnote: 1
Footnote: 2
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