Appeal by defendant from orders entered 11 September 2002 and
30 October 2002 by Judge Regan A. Miller in Mecklenburg County
District Court.
(See footnote 1)
Heard in the Court of Appeals 25 February 2004.
James, McElroy & Diehl, P.A., by G. Russell Kornegay, III and
Preston O. Odom, III, for plaintiff-appellee.
Horack, Talley, Pharr & Lowndes, P.A., by Kary C. Watson and
Tate K. Sterrett, for defendant-appellant.
HUNTER, Judge.
Thomas E. Zaliagiris, Sr. (“defendant”) appeals from an
amended Judgment and Order on Equitable Distribution, Alimony, and
Child Support filed 11 September 2002 and a Memorandum Order filed
30 October 2002. Because we conclude the trial court (1) erred in
assessing sanctions against defendant without giving him proper due
process notice, and (2) erred in failing to take into account
defendant's child support obligation to a child born of a
subsequent marriage in setting defendant's permanent child support
payments in a case not controlled by the presumptive child support
guidelines, we reverse in part and remand.
Defendant and Elizabeth Smith Zaliagiris (“plaintiff”) were
married on 20 August 1983 and separated on 21 January 1998. On 7
February 2000, plaintiff filed a complaint seeking custody of the
two children born of the marriage, child support, post-separation
support, alimony, equitable distribution, and attorney's fees. On
17 April 2000, defendant filed his answer and counterclaim.
Following the resolution of the post-separation support, temporary
child support, and custody claims, the remaining equitable
distribution, alimony, and child support claims came on for trial
on 13 February 2002. Prior to trial, the trial court, on motion ofplaintiff, entered a preliminary injunction freezing all of
defendant's assets, which resulted in defendant releasing his
attorney and proceeding to trial pro se due to his representation
he would be unable to pay an attorney.
At trial, both parties produced expert witness testimony
regarding the valuation of defendant's twenty-five percent (25%)
share in a business entity. T. Randolph Whitt (“Whitt”),
plaintiff's expert, testified that the interest was valued at
$413,000.00 on the date the parties separated and was worth
$527,000.00 in August 2001. Timothy Allen Stump (“Stump”),
defendant's expert, testified that on the date of separation,
defendant's interest in the company was only $61,241.00, and in
October 2001 was worth $172,509.00. Stump had been unaware until
shortly before trial that defendant had sold his ownership interest
in the business for $400,000.00 in 2001.
With regard to the child support portion of the action, both
parties agree that this was not a case in which the presumptive
child support guidelines apply. Prior to trial, defendant
submitted an affidavit in which he stated that he was responsible
for child support in the amount of $1,440.00 per month for a child
born during his subsequent marriage who was not a part of the
action. At trial, both plaintiff and defendant produced evidence
that defendant was under a court order to pay child support for
this child in the amount of $1,440.00. The record further
indicates that a Catawba County District Court order requiringdefendant to pay this amount was entered into evidence by
defendant.
(See footnote 2)
In a Judgment and Order filed 24 June 2002, the trial court
found that the value of defendant's interest in the business was
$413,000.00 on the date of separation and ordered defendant to
reimburse plaintiff for the cost of hiring Whitt as an expert
witness. The trial court also found that although defendant had a
child from a subsequent marriage, and was now separated, he was
nevertheless not under a court order or other written obligation to
provide child support for that child, and thus the trial court did
not factor in any other child support obligation in determining
defendant's child support requirements in this case. In addition,
the trial court made the award of alimony and permanent child
support retroactively effective to 1 February 2002.
Both parties subsequently filed motions requesting the trial
court to reconsider and amend its 24 June 2002 judgment and order.
As an exhibit to his motion for reconsideration, defendant attached
a copy of the Catawba County child support order. A hearing was
conducted on these motions on 29 August 2002, at which an affidavit
from Whitt was presented showing that he had not given his expert
testimony at trial on behalf of plaintiff pursuant to a subpoena.
Once it was pointed out to the trial court that, as Whitt had not
been subpoenaed, the expert witness fee could not be assessed as a
court cost, the trial court announced sua sponte that instead ofassessing the expert witness fees as costs, they would be assessed
as a Rule 11 sanction against defendant. The trial court stated
defendant was “going to have to pay these fees one way or another”
and that the trial court would “figure out a way to” make defendant
pay Whitt's expert witness fee because defendant should have
stipulated to the valuation of the business. Plaintiff's counsel
noted that the appropriate statute for sanctioning defendant would
be N.C. Gen. Stat. § 50-21(e) for willful obstruction and
unreasonable delay of an equitable distribution proceeding. The
trial court later stated it would make additional findings of fact
to justify the award of expert witness fees as a sanction against
defendant.
On the issue of whether the award of permanent child support
should be modified to reflect defendant's child support obligations
to his child from the subsequent marriage, the trial court stated
that even if it had considered the amount of defendant's other
child support obligation, it would not have altered the trial
court's ruling in this case “because [defendant] decided to have
another child after he separated from his wife.” The trial court
further clarified “I would not have adversely affected [the amount
of support to the children of his marriage to plaintiff] to allow
him to support this third child because that's just something that
he was going to have to . . . figure out a way to do . . . .”
The trial court entered an amended judgment and order on 11
September 2002. In this amended judgment, the trial court made no
adjustment to the amount of permanent child support and did not
alter its finding of fact regarding defendant's other child support obligations to his child from a subsequent marriage. Furthermore,
the trial court made additional findings of fact that defendant's
refusal to accept plaintiff's valuation of the business resulted in
a willful obstruction and unnecessary delay of the proceedings and
concluded as a matter of law that defendant should be sanctioned
under both Rule 11 and N.C. Gen. Stat. § 50-21(e). As a result,
defendant was ordered to not only pay a sanction in the amount of
the expert witness fee of $14,500.00, but in addition to pay
plaintiff's attorney's fees related to the presentation of the
expert witness testimony in the amount of $4,235.00. The trial
court further did not alter the effective date of alimony and
permanent child support.
On 20 September 2002, defendant filed a motion for a new
trial. In an order filed 30 October 2002, the trial court granted
this motion in part on the limited issue of the appropriate amount
of sanctions to be assessed against defendant. Before the trial
court could reconsider the amount of sanctions, defendant filed a
notice of appeal on 20 December 2002. The trial court subsequently
entered an order filed on 14 February 2003, which reduced the
amount of sanctions awarded by five dollars and awarded the
sanctions solely under N.C. Gen. Stat. § 50-21(e).
The issues are whether (I) the trial court erred by summarily
recasting the improper assessment of an expert witness fee as a
sanction against defendant; (II) the trial court erred in failing
to consider defendant's child support obligation to a child born of
a subsequent marriage in a case where the presumptive child support
guidelines do not apply; and (III) the trial court abused itsdiscretion in setting the retroactive effective date of the award
of alimony and child support.
[1] At the outset, we note that it appears this appeal was
taken prematurely before the trial court could enter its final
ruling on the appropriate award of sanctions against defendant. To
the extent, however, this is an interlocutory appeal subject to
dismissal, we elect to exercise our discretion under Rule 21 of the
North Carolina Rules of Appellate Procedure and grant certiorari to
consider the full merits of this appeal including the 14 February
2003 order filed subsequent to the notice of appeal. The dissent,
while not disagreeing with our analysis on the merits, takes issue
solely with our decision to grant a writ of certiorari in this
matter.
It is an appropriate exercise of this Court's discretion to
issue a writ of certiorari in an interlocutory appeal where, as in
this case, there is merit to an appellant's substantive arguments
and it is in “the interests of justice” to treat an appeal as a
petition for writ of certiorari. Sack v. N.C. State Univ., 155
N.C. App. 484, 490, 574 S.E.2d 120, 126 (2002); see also Huffman v.
Aircraft Co., 260 N.C. 308, 310, 132 S.E.2d 614, 615-16 (1963)
(discussing the appropriateness of treating an appeal as a petition
for writ of certiorari based on the merits of the substantive
issues). Contrary to the dissent's assertions, the North Carolina
Court of Appeals has the discretionary authority to treat a
purported appeal as a petition for a writ of certiorari and to
issue such a writ in order to consider the appeal. Staton v.Russell, 151 N.C. App. 1, 7, 565 S.E.2d 103, 107 (2002). Under
Rule 21 of the North Carolina Rules of Appellate Procedure:
The writ of certiorari may be issued in
appropriate circumstances by either appellate
court to permit review of the judgments and
orders of trial tribunals when the right to
prosecute an appeal has been lost by failure
to take timely action, or when no right of
appeal from an interlocutory order exists . .
. .
N.C.R. App. P. 21(a)(1). In this case, the dissent generally
contends that we should not issue a writ of certiorari because this
appeal, when originally taken, was interlocutory and no substantial
right would have been lost had we declined to take the appeal.
Under the express provision of Rule 21, however, this is exactly
one of the situations in which our discretion to issue a writ of
certiorari applies, i.e. when an appeal is interlocutory and
unappealable.
The dissent specifically disagrees with our decision to
include the 14 February 2003 order in our review of this appeal.
(See footnote 3)
First of all, the issue of whether or not this Court has the power
to issue a sua sponte writ of certiorari is not before us in this
case. In defendant's petition for writ of certiorari to this
Court, he expressly petitions this Court to review the 14 February
2003 order if we deem it necessary to the appeal, simply arguing in
the alternative that since the errors assigned occurred in previousorders it was not necessary for him to appeal from the 14 February
2003 order. Specifically, defendant states in the opening
paragraph of his petition, that he “respectfully requests that this
Court enter an Order denying [the motion to dismiss the appeal] or
in the alternative review the [Order] . . . dated . . . February
14, 2003 . . ..” In conclusion, defendant's petition to this Court
states, “However, should this Court determine that [defendant] was
required to perfect his appeal of the February 14, 2003 Sanctions
Order in order for this Court to review the errors contained in the
Judgment, Amended Judgment and Memorandum Order, [defendant]
respectfully requests . . . that this Court issue its writ of
certiorari and allow him to proceed with the pending appeal.”
Thus, defendant has requested this Court to issue a writ of
certiorari to review the 14 February 2003 order.
Furthermore, because no appeal was taken specifically from the
14 February 2003 order, defendant has lost the right to appeal from
that order by failing to take timely action, which is the second
scenario under Rule 21 of the Appellate Rules where this Court has
the discretion to issue a writ of certiorari. We note the
dissent's suggestion, that the better approach would have been to
take two separate appeals and then seek to consolidate them, while
true, would have left us in essentially the same procedural posture
in which we now find ourselves by granting the writ of certiorari.
Finally, the dissent suggests that reaching the merits of this
appeal is inappropriate with regard to the 14 February 2003 order
because there is not an adequate record to review the proceedings,
stating that it is possible that other matters including childsupport may have been addressed. The 30 October 2002 order
granting a new hearing, however, did so only on the limited issue
of the amount of sanctions imposed against defendant and the 14
February 2003 order makes no reference to child support or any
issue other than the amount of sanctions imposed. Therefore, the
writ of certiorari is granted.
I.
[2] Defendant first argues the trial court erred in
sanctioning him by requiring defendant to reimburse plaintiff for
her expert witness fees and to pay the related attorney's fees.
(See footnote 4)
We agree.
A trial court may not assess expert witness fees against a
party as costs, unless the expert's appearance is pursuant to a
subpoena.
See Rogers v. Sportsworld of Rocky Mount, Inc., 134 N.C.
App. 709, 713, 518 S.E.2d 551, 554 (1999). Under N.C. Gen. Stat.
§ 50-21(e), a trial court shall impose sanctions if it finds a
party “has willfully obstructed or unreasonably delayed or
attempted to obstruct or unreasonably delay any pending equitable
distribution proceeding,” and that “[t]he willful obstruction or
unreasonable delay of the proceedings is or would be prejudicial to
the interests of the opposing party.” N.C. Gen. Stat. § 50-21(e)(2003). A trial court's decision to impose sanctions under Section
50-21(e) is generally reviewed for an abuse of discretion.
See
Crutchfield v. Crutchfield, 132 N.C. App. 193, 195, 511 S.E.2d 31,
33-34 (1999). Moreover, a party has a due process right to notice
both (1) of the fact that sanctions may be imposed, and (2) the
alleged grounds for the imposition of sanctions.
Griffin v.
Griffin, 348 N.C. 278, 279-80, 500 S.E.2d 437, 438-39 (1998). “In
order to pass constitutional muster, the person against whom
sanctions are to be imposed must be advised in advance of the
charges against him.”
Id. at 280, 500 S.E.2d at 439. The fact
that the party against whom sanctions are imposed took part in the
hearing “and did the best he could do without knowing in advance
the sanctions which might be imposed does not show a proper notice
was given.”
Id.
In this case, the trial court initially ordered defendant to
pay plaintiff's expert witness fee as a court cost, which was
clearly impermissible since no subpoena had been issued. Once,
however, it was pointed out that the expert had not been
subpoenaed, the trial court simply ordered the expert witness fee
paid as a sanction against defendant and added an additional
sanction of attorney's fees, making appropriate findings to support
the award of sanctions. Defendant was, however, given no due
process notice that he would be subject to the imposition of
sanctions upon reconsideration of the 24 June 2002 judgment and
order, or the grounds upon which those sanctions would be imposed.
See id. Here, defendant was misled by the notice he actually
received of the hearing because he only had notice that theimproper assessment of costs would be reconsidered, not that
sanctions would be imposed as an alternative.
See id.
Thus, the trial court erred by failing to provide defendant
with proper notice that sanctions might be imposed upon him in
violation of defendant's due process right to proper notice.
Consequently, we conclude that it was error under N.C. Gen. Stat.
§ 50-21(e) for the trial court to summarily recast the improper
assessment of expert witness costs as a sanction against defendant,
where defendant was given no notice that he would be made subject
to such a sanction or the grounds upon which such sanction would be
imposed.
(See footnote 5)
Thus, we reverse the award of sanctions against
defendant including both the award of the amount of the expert
witness fee and the related attorneys' fees.
II.
[3] Defendant next contends it was error for the trial court
to fail to consider his child support obligation to a child born of
his subsequent marriage in determining his child support in the
present case. Again, we agree. Where, as in this case, the
presumptive child support guidelines do not apply:
In determining child support on a case-by-case
basis, the order “must be based upon the
interplay of the trial court's conclusions of
law as to (1) the amount of support necessary
to 'meet the reasonable needs of the child'
and (2) the relative ability of the parties to
provide that amount.”
Taylor v. Taylor, 118 N.C. App. 356, 362, 455 S.E.2d 442, 447
(1995) (quoting
Newman v. Newman, 64 N.C. App. 125, 127, 306 S.E.2d540, 542 (1983)),
rev'd on other grounds 343 N.C. 50, 468 S.E.2d 33
(1996). In determining the relative ability of the parties to pay
child support, the trial court “'must hear evidence and make
findings of fact on the parents' income[s], estates . . . and
present reasonable expenses.'”
Id. at 362-63, 455 S.E.2d at 447
(quoting
Little v. Little, 74 N.C. App. 12, 20, 327 S.E.2d 283, 290
(1985)). Although the trial court is granted considerable
discretion in its consideration of the factors contained in N.C.
Gen. Stat. § 50-13.4(c), the trial court's finding in this regard
must be supported by competent evidence in the record and be
specific enough to enable this Court to make a determination that
the trial court “'took “due regard” of the particular “estates,
earnings, conditions, [and] accustomed standard of living” of both
the child and the parents.'”
Id. at 363, 455 S.E.2d at 447
(citation omitted).
In this case, the trial court's finding that defendant was not
under any other child support obligation pursuant to a court order
or other written obligation flies in the face of the uncontroverted
evidence presented at trial by both parties that defendant was
under a Catawba County District Court order to provide child
support payments for a child born from his subsequent marriage.
Thus, the trial court's finding is not supported by competent
evidence in the record and is not sufficient to establish that the
trial court took due regard of defendant's estates, earnings,
conditions and other facts of the particular case as required under
N.C. Gen. Stat. § 50-13.4(c). Therefore, we hold, on the facts of
this case, that in determining child support obligations where thepresumptive guidelines do not apply, a trial court must take into
consideration a parent's court ordered financial obligation to
another child born of a subsequent marriage. Accordingly, we
reverse the child support portion of the 11 September 2002 amended
Judgment and Order and remand this case to the trial court for a
redetermination of the parties' child support obligations.
III.
[4] Defendant finally contends that the trial court abused its
discretion in making his child support obligations retroactive only
until 1 February 2002. Prior to the entry of the permanent child
support order, defendant had been ordered to pay temporary child
support in a greater amount than finally ordered. Defendant argues
that the trial court erred by not using its discretion to set an
even earlier retroactive date for his permanent child support
obligation. We conclude that although the prior temporary child
support order was subject to modification, the trial court did not
abuse its discretion in failing to modify that temporary order to
set an earlier retroactive effective date for permanent child
support.
See Miller v. Miller, 153 N.C. App. 40, 48-49, 568 S.E.2d
914, 919-20 (2002).
Accordingly, we affirm the portion of the trial court's 11
September 2002 amended Judgment and Order setting the effective
date of defendant's permanent child support obligation; we reverse
the award of sanctions under Rule 11 and N.C. Gen. Stat. § 50-
21(e); and reverse and remand this case for a new determination of
the amount of defendant's child support obligation.
Affirmed in part, reversed in part and remanded. Judge McCULLOUGH concurs.
Judge LEVINSON dissents.
LEVINSON, Judge dissenting.
This Court lacks the authority to address the merits of this
appeal because (1) defendant appeals from an interlocutory order
that does not implicate a substantial right, (2) defendant has not
appealed from the final order, nor sought
certiorari on the final
order, and (3) neither N.C.R. App. P. Rule 21, nor any other
statutory or common law basis, gives this Court jurisdiction to
issue a writ of
certiorari sua sponte where a litigant neither
appeals from a judgment or order, nor files a petition seeking
certiorari for review of a judgment. The desire
to provide
appellate review for litigants is understandable. However, because
jurisdiction is lacking, this appeal must be dismissed.
While the factual and procedural history outlined by the
majority opinion is accurate, I note several additional events.
After granting defendant's 20 September 2002 motion for a new trial
on the issue of sanctions, the trial court conducted a hearing on
the same on 11 December 2002. Thereafter, on 14 February 2003, the
trial court entered what the majority acknowledges was the final
order. The final order contained an amended order on sanctions,
incorporated the findings of fact and conclusions of law of the 11
September 2002 Amended Judgment, and added new findings and
conclusions pertaining to the imposition of sanctions.
After the
hearing on 11 December 2002 but
before the trial court entered its
final order on 14 February 2003, defendant gave notice of appealfrom several of the court's earlier orders. However, defendant has
neither appealed from the order of 14 February 2003, nor assigned
error to it. On 10 October 2003 plaintiff filed a motion to
dismiss defendant's appeal as interlocutory, and for violations of
the North Carolina Rules of Appellate Procedure. On 23 October
2003 defendant filed a response asking this Court either to deny
plaintiff's dismissal motion or to “issue its writ of
certiorari
and allow [defendant] to proceed with the
pending appeal.”
(emphasis added). At that time no appeal from the final order was
“pending.”
I agree with the majority that defendant's appeal is
interlocutory. Under N.C.G.S. § 1A-1, Rule 54(a) (2003), a
judgment “is either interlocutory or the final determination of the
rights of the parties.” A final judgment “is one which disposes of
the cause as to all the parties, leaving nothing to be judicially
determined between them in the trial court.”
Veazey v. Durham, 231
N.C. 357, 361-62, 57 S.E.2d 377, 381 (1950).
Defendant appealed from several orders, the latest of which
was the 30 October 2002 order, which granted in part defendant's
motion for a new trial and scheduled a hearing on the issue of
sanctions. The order of 30 October clearly required “further
action by the trial court,” and was therefore interlocutory.
I agree the final judgment in this case was the order of 14
February 2003. Defendant concedes as much in his Appeal
Information Statement, which lists 14 February 2003 as the date
final judgment was entered. In reaching this conclusion, I rejectdefendant's argument that the order of 14 February 2003 cannot be
the final judgment because it “merely” determined the amount of
sanctions.
See Steadman v. Steadman, 148 N.C. App. 713, 559 S.E.2d
291 (2002) (trial court's order was interlocutory where it
determined plaintiff was entitled to a money judgment, but deferred
determination of the amount of judgment and attorney's fees until
a later hearing). Furthermore, the final order also incorporated
findings and conclusions from earlier orders, and added new
findings and conclusions.
“Generally, there is no right of immediate appeal from
interlocutory orders and judgments.”
Sharpe v. Worland, 351 N.C.
159, 161, 522 S.E.2d 577, 578 (1999). In the instant case, the
Record on Appeal does not include a notice of appeal from the 14
February order. Also, defendant did not assign error to the final
judgment, did not argue in his brief that there was error in this
order, and has not sought to amend the record to include notice of
appeal from the final order entered 14 February 2003. Moreover, in
his response to plaintiff's dismissal motion and his petition for
certiorari, defendant expressly disavows any desire to appeal the
final order. “Failure of a party to file a notice of appeal
regarding a particular order deprives this Court of jurisdiction
over issues arising out of the order.”
Albrecht v. Dorsett, 131
N.C. App. 502, 504, 508 S.E.2d 319, 321 (1998).
The majority purports to utilize Rule 21 to grant
certiorari
in order to review the 14 February 2003 order. However,
defendant's appeal from the interlocutory order of 30 October 2002
and earlier orders does not confer jurisdiction on this Court toreview the final judgment of 14 February 2003 by way of Rule 21
certiorari. Under N.C.R. App. P. 21(a)(1), this Court may issue a
writ of
certiorari “in appropriate circumstances . . . to permit
review of the judgments and orders of trial tribunals when the
right to prosecute an appeal has been lost by failure to take
timely action, or when no right of appeal from an interlocutory
order exists[.]” Thus, we may issue a writ of
certiorari in order
to reach issues raised by an appellant who failed to timely file
notice of appeal or failed to include the notice in the Record on
Appeal.
Anderson v. Hollifield, 345 N.C. 480, 482, 480 S.E.2d 661,
663 (1997) (“Rule 21(a)(1) gives an appellate court the authority
to review the merits of an appeal by
certiorari even if the party
has failed to file notice of appeal in a timely manner.”). Rule 21
does not apply, however, to the present case.
Defendant has not sought
certiorari review of the 14 February
2003 order. It bears repeating that defendant did not assign error
to the final judgment or argue in his brief that it was erroneous.
Nor does defendant's petition for
certiorari ask us to issue a writ
of
certiorari to permit him to appeal the 14 February 2003 order.
Although defendant's introductory paragraph mentions the order, in
the body of his motion and petition defendant takes pains to inform
this Court that he intentionally “chose not to perfect his appeal,
nor assign error” to the 14 February 2003 order “because he
believed that the errors committed by the trial court were
contained in [the trial court's earlier orders].” Indeed,
defendant argues that he “should not be required to pursue an
appeal of an order, or assign error to it, when he does not findthat the trial court's errors were committed . . . in that order.”
Finally, the concluding paragraph of defendant's motion asks that
“
in order for this Court to review the errors contained in the
Judgment, Amended Judgment and Memorandum Order, . . . [defendant
requests] that this Court issue its writ of certiorari and allow
him to proceed with
the pending appeal.” (emphasis added). The
“pending appeal” concerned everything
but the final order.
I am unaware of any other statutory or common law basis for
our issuance of a writ of
certiorari sua sponte where a litigant
neither appeals from a judgment or order, nor files a petition
seeking
certiorari for review of a judgment. Such is the present
circumstance.
Moreover, as a practical matter, the majority's attempt to
review the final order ignores several glaring problems. Because
notice of appeal was not taken from the final order, a record on
appeal was not prepared as to that order. Because no assignments
of error have been made as to the final order, the majority is
apparently assuming that the errors assigned to the interlocutory
orders apply equally to the final order. But, because the record
does not include a transcript of the 11 December 2002 hearing on
defendant's motion for a new trial, this Court has no information
about the arguments and evidence presented at the hearing.
Although the 11 December 2002 hearing was intended to concern only
the issue of sanctions, it is possible that the court took
additional evidence concerning the child support issue. Our Rules
of Appellate Procedure, including Rule 21, afford appropriate
structure to avoid such problems. The majority's application ofRule 21 to address the final order creates a dangerous precedent.
To obtain review of the final order, defendant could - and should -
have timely appealed from the final order or sought
certiorari
review as to that order. In that event, we could have consolidated
both appeals.
Rule 21 affords this Court an opportunity to overlook technical
violations of the Rules under appropriate, specifically prescribed
limitations. But the authority to do so should be limited to cases
in which the parties are actually
trying to appeal an order and
make a request to do so. Again, defendant has expressly insisted
he has not tried to do so.
Finally, defendant failed to include the Statement of Grounds
for Appellate Review required by N.C.R. App. P. 28(b)(4). This
might not ordinarily warrant a dismissal. However, in the instant
case, the question of defendant's entitlement to appellate review
is a
central issue before this Court, and the omission of a
statement of grounds for appellate review is not merely a technical
oversight. “It is not the duty of this Court to construct
arguments for or find support for appellant's right to appeal[.]”
Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380, 444
S.E.2d 252, 254 (1994). Accordingly, this violation, in and of
itself, is sufficient to warrant dismissal. During oral argument,
counsel for defendant could not provide a satisfactory legal
argument as to how this Court could address the merits of the 14
February 2003 order given the posture of this matter. Indeed, no
such argument exists. In sum, defendant's appeal is interlocutory and he has neither
appealed from nor properly sought review by
certiorari of the 14
February 2003 final judgment. In addition, defendant's failure to
include a Statement of Grounds for Appellate Review constitutes a
substantial violation of the Rules of Appellate Procedure
warranting dismissal. In my view, defendant's appeal must be
dismissed.
Footnote: 1