Appeal and Error--appellate rules--multiple violations--appeal dismissed
Plaintiffs' appeal from the trial court's order granting partial summary judgment in favor
of defendants on the issue of negligent infliction of emotional distress is dismissed based on
plaintiffs' failure to follow the Rules of Appellate Procedure.
Britt & Britt, PLLC, by William S. Britt, for plaintiff-
appellants.
Walker, Clark, Allen, Herrin & Morano, L.L.P., by Scott T.
Stroud, for defendant-appellees F. Ray Thigpen, M.D. and
Whiteville Medical Associates, P.A.
Marshall, Williams & Gorham, L.L.P., by John D. Martin, for
defendant-appellee Columbus County Hospital, Inc.
HUNTER, Judge.
Renee G. Kellihan, Administratrix of the Estate of Dalton
Kellihan, deceased, and Renee G. Kellihan, and Robert Kellihan,
individually (herein collectively “plaintiffs”), appeal from the
trial court's order granting partial summary judgment on the issue
of negligent infliction of emotional distress in favor of Frank Ray
Thigpen, M.D., Whiteville Medical Associates, P.A., and Columbus
County Hospital, Inc. (herein collectively “defendants”).
Plaintiffs bring forward one assignment of error, while defendants
cross-appeal with a second. However, we are unable to reach themerits of these arguments as this appeal must be dismissed for
violation of our appellate rules. On 14 January 1994, Renee Kellihan gave birth to an infant
that was delivered by emergency caesarian section at Columbus
County Hospital, located in Whiteville, North Carolina.
Complications at birth -- the infant was not breathing and had a
poor heart rate -- caused the hospital staff to have to intubate
the infant with an endotracheal (“ET”) tube. After a short amount
of time, a chest x-ray was performed on the infant to check the
placement of the ET tube. The x-ray found that the tip of the ET
tube might have been within the infant's esophagus. Hospital staff
extubated, and then reintubated the infant. Immediately, the
infant's heart rate increased and his skin color became pink. The
infant, however, remained in critical condition and died four days
later on 18 January 1994.
Plaintiffs instituted this action by filing a complaint on 21
August 1997 alleging wrongful death and negligent infliction of
emotional distress. On 11 March 1999, defendants filed a motion
for partial summary judgment on the negligent infliction of
emotional distress claim. This motion was heard before the
Honorable Abraham Penn Jones at the 12 April 1999 Civil Session of
Columbus County Superior Court. On 3 June 1999, Judge Jones issuedan order allowing partial summary judgment on the negligentinfliction of
emotional distress issue. Plaintiffs subsequently
filed a notice of voluntary dismissal on 6 June 1999 as to their
wrongful death claim. Then on 14 June 1999, plaintiffs filed their
notice of appeal as to Judge Jones' order.
“The Rules of Appellate Procedure are mandatory and failure to
follow the rules subjects an appeal to dismissal.” Wiseman v.
Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). The
rules “are designed to keep the process of perfecting an appeal
flowing in an orderly manner.” Craver v. Craver, 298 N.C. 231,
236, 258 S.E.2d 357, 361 (1979). “'Counsel is not permitted to
decide upon his own enterprise how long he will wait to take his
next step in the appellate process'” Id. (quoting Ledwell v.
County of Randolph, 31 N.C. App. 522, 523, 229 S.E.2d 836, 837
(1976)).
In settling the record on appeal, N.C.R. App. P. 11(c) states
in pertinent part:
If any appellee timely serves amendments,
objections, or a proposed alternative record
on appeal, the appellant or any other
appellee, within 10 days after expiration of
the time within which the appellee last served
might have served, may in writing request the
judge from whose judgment, order, or other
determination appeal was taken to settle the
record on appeal. . . . If only one appellee
or only one set of appellees proceeding
jointly have so served, and no other party
makes timely request for judicial settlement,
the record on appeal is thereupon settled in
accordance with the appellee's objections,
amendments or proposed alternative record on
appeal. If more than one appellee proceeding
separately have so served, failure of the
appellant to make timely request for judicial
settlement results in abandonment of the
appeal as to those appellees, unless withinthe time allowed an appellee makes request in
the same manner.
At bar, plaintiffs timely served the proposed record on appeal on
defendants. On 25 and 26 October 1999, defendants timely notified
plaintiffs of their objections and amendments to the proposed
record by letter sent via United States mail. Plaintiffs failed to
respond to defendants or to make a request for judicial settlement.
As a result, the proposed record on appeal, in conformity with
defendants' objections and amendments, became the record on appeal
thirteen (13) days later (ten (10) days as per N.C.R. App. P. 11(c)
plus three (3) days as per N.C.R. App. P. 27(b) since defendants
served their objections and amendments by United States mail) on 8
November 1999.
According to N.C.R. App. P. 12(a), “[w]ithin 15 days after the
record on appeal has been settled by any of the procedures provided
in this Rule 11 or Rule 18, the appellant shall file the record on
appeal with the clerk of the court to which appeal is taken.” This
Court has not hesitated in the past to dismiss an appeal for
failure to timely file the record on appeal pursuant to N.C.R. App.
P. 12(a). See Taylor v. City of Lenoir, 140 N.C. App. 337, 536
S.E.2d 848 (2000), opinion superseded on rehearing, ___ N.C. App.
___, 542 S.E.2d 222 (2001) (appeal dismissed due to class counsels'
violation of Rule 12(a)'s mandate to file the record on appeal
within fifteen (15) days after it had been settled); see also
Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316
(1999) (appeal dismissed because pro se appellant violated the
appellate rules, including failing to file the record on appealwithin fifteen (15) days after it was settled in violation of Rule
12(a)); see also Higgins v. Town of China Grove, 102 N.C. App.
570, 402 S.E.2d 885 (1991) (violation of appellate rules led to
dismissal in case where appellant failed to settle record and time
for settling record had expired, thus record was not filed within
fifteen (15) days as per Rule 12(a)); see also Richardson v.
Bingham, 101 N.C. App. 687, 400 S.E.2d 757 (1991) (plaintiff failed
to request judicial settlement; thus record on appeal was settled
in accordance with defendant's objections and amendments; and
plaintiff's failure to file the record with this Court within
fifteen (15) days after settlement led to dismissal for violation
of Rule 12(a)).
Here, plaintiffs had until 23 November 1999 (fifteen (15) days
per N.C.R. App. P. 12(a) after 8 November 1999) to file the record
on appeal with this Court, however, they failed to do so. Instead,
plaintiffs attempted to serve defendants a second proposed record
on appeal on 30 November 1999. Defendants asserted that this
proposed record on appeal was still not complete and was not
consistent with their previous objections and amendments. Thus
defendants refused to sign this proposed record on appeal.
Plaintiffs then filed the record on appeal with this Court on 3
December 1999. On that same date, plaintiffs filed a motion to
deem the record timely filed. Subsequently defendants filed a
motion to dismiss.
Plaintiffs violated N.C.R. App. P. 12(a) by filing the settled
record on appeal with this Court after the fifteen (15) day timeperiod under the rule had expired. Defendants make several other
arguments that are compelling to warrant dismissal of plaintiffs'
appeal. First, defendants contend that the record on appeal that
has been filed with this Court is not yet in conformity with their
objections and amendments that were served on plaintiffs on 25 and
26 October 1999. Defendants argue that the pleadings and documents
presented in the record on appeal do not clearly depict the date on
which they were filed with the court; their cross-assignment of
error is incorrect as defendants are cross-appealing a previous
trial court order regarding the negligent infliction of emotional
distress claim; and lastly, the first motion for partial summary
judgment made by defendants Thigpen and Whiteville Medical
Associates, P.A. filed on 27 August 1998 is not included. The
argument could be made that the record on appeal has never in fact
been settled, but as we find other grounds for dismissal, we choose
not to address this argument.
We note that plaintiffs' inclusion of pleadings and documents
presented in the record on appeal that do not clearly depict the
date on which they were filed with the court is in violation of
N.C.R. App. P. 9(b)(3) which states, “[e]very pleading, motion,
affidavit, or other paper included in the record on appeal shall
show the date on which it was filed . . . . Every judgment, order,
or other determination shall show the date on which it was
entered. . . .”
Next, defendants argue that as they are separate appellees
proceeding separately, failure of plaintiffs to make a timelyrequest for judicial settlement after they were served with
defendants' objections and amendments resulted in abandonment of
their appeal as per N.C.R. App. P. 11(c). As there are other
adequate grounds for dismissal, we choose not to address this issue
here.
N.C.R. App. P. 25(a) states:
If after giving notice of appeal from any
court, . . . the appellant shall fail within
the times allowed by these rules or by order
of court to take any action required to
present the appeal for decision, the appeal
may on motion of any other party be
dismissed. . . .
“The time deadlines set out in our appellate rules are important
and should be followed.” Taylor v. City of Lenoir, ___ N.C. App.
___, ___, 542 S.E.2d 222, 224. Plaintiffs failed to meet the time
deadline set out in N.C.R. App. P. 12(a), and therefore their
filing of the record on appeal in this case was late. This
violation of our appellate rules subjects this appeal to dismissal
on defendants' motion.
Our decision is consistent with other recent decisions
dismissing appeals for appellate rules violations. See Taylor v.
City of Lenoir, 140 N.C. App. 337, 341, 536 S.E.2d 848, 850; Bowen
v. N.C. Dep't of Health and Human Servs., 135 N.C. App. 122, 519
S.E.2d 60 (1999); Bledsoe v. County of Wilkes, 135 N.C. App. 124,
519 S.E.2d 316; Talley v. Talley, 133 N.C. App. 87, 513 S.E.2d 838,
review denied, 350 N.C. 599, 537 S.E.2d 495 (1999); Webb v.
McKeel, 132 N.C. App. 816, 513 S.E.2d 596 (1999); Duke University
v. Bishop, 131 N.C. App. 545, 507 S.E.2d 904 (1998). Furthermore, we have reviewed this case on its merits, and
we
conclude that plaintiffs' arguments are without merit.
Based on plaintiffs' violation of our appellate rules, we
hereby dismiss this appeal.
Appeal dismissed.
Judges LEWIS and WYNN concur.
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