NO. COA01-1175
Appeal by respondents John and Patricia Root from order
entered 23 July 2001 by The North Carolina Utilities Commission.
Heard in the Court of Appeals 6 June 2002.
Parker, Poe, Adams & Bernstein, L.L.P, by John W. Francisco,
for petitioner-appellee.
John Root for respondent-appellants, pro se.
PER CURIAM.
Appellants have appealed from a Final Order Denying Complaint
entered by the North Carolina Utilities Commission (“Commission”).
Appellee Duke Power has moved to dismiss the appeal.
From the record, Duke Power's motion, and appellants' response
to the motion, it appears the Commission entered its Final Order
Denying Complaint on 23 July 2001. On 22 August 2001, appellants
filed a notice of appeal, dated 21 August 2001, from such order
with the Commission and requested that the order be stayed. Therecord does not reflect service of the notice of appeal on Duke
Power. By order dated 5 September 2001, the Commission denied
appellants' request for a stay. On 17 September 2001, appellants
filed a second notice of appeal from the Final Order Denying
Complaint and served a copy on all parties by first class mail. On
19 September 2001, appellants filed a “Record on Appeal” with this
Court without having first filed a proposed record on appeal with
the Commission or having served a copy of the proposed record on
appeal on Duke Power.
G.S. § 62-90(d) provides that procedure for appeals from the
Utilities Commission “shall be as provided by the rules of
appellate procedure.” N.C.R. App. P. 18 governs appeals from
administrative agencies, including the Utilities Commission, to the
appellate division. N.C.R. App. P. 18(b)(2) provides that a party
may appeal from a final agency determination “by filing
and serving
a notice of appeal within 30 days after receipt of a copy of the
final order of the agency [emphasis added].” While, as appellants
argue, G.S. § 62-90(b) provides that the failure of an appealing
party to serve a copy of the notice of appeal on any party other
than the Commission does not affect the validity of the appeal, the
Rules of Appellate Procedure, as established by our Supreme Court,
are mandatory and “may not be disregarded or set at naught [] by
act of the Legislature . . . .”
State v. Fennell, 307 N.C. 258,263, 297 S.E.2d 393, 396 (1983) (quoting
Pruitt v. Wood, 199 N.C.
788, 789-90, 156 S.E. 126, 127 (1930)).
N.C.R. App. P. 12(a) requires that the
settled record on
appeal be filed with the clerk of the court to which the appeal is
taken. N.C.R. App. P. 18(d) provides the methods by which the
record on appeal may be settled. Unless the record is settled by
agreement, N.C.R. App. P. 18(d)(2) requires the appellant to file
a copy of a proposed record on appeal in the office of the agency
head and serve copies of the proposed record on all other parties.
Appellants have not complied with these rules. The Rules of
Appellate Procedure are mandatory and a failure to follow the rules
subjects an appeal to dismissal.
Steingress v. Steingress, 350
N.C. 64, 65, 511 S.E.2d 298, 299 (1999);
see also Bradshaw v.
Stansberry, 164 N.C. 356, 356, 79 S.E. 302, 302 (1913) (“It is,
therefore, necessary to have rules of procedure and to adhere to
them, and if we relax them in favor of one, we might as well
abolish them.”) The rules apply equally to
pro se appellants.
Strauss v. Hunt, 140 N.C. App. 345, 536 S.E.2d 636 (2000). Duke
Power's motion to dismiss the appeal for appellants' failure to
comply with the Rules of Appellate Procedure is allowed.
Appeal Dismissed.
Panel Consisting of:
MARTIN, TIMMONS-GOODSON and CAMPBELL, JJ. Report per Rule 30(e).
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