NO. COA03-678

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

    Appeal by defendant from judgment entered 23 August 2002 by Judge Scott Brewer in Anson County District Court. Heard in the Court of Appeals 1 March 2004.

    Paul S. Prelipp, for plaintiff-appellee.

    Henry T. Drake, for defendant-appellant.

    LEVINSON, Judge.

    Defendant (Tommy A. Howell, II) appeals from a judgment and order of paternity establishing that he is the natural, legal, and biological father of the minor child (hereafter T.C.M.) born 2 February 1996. For the reasons that follow, defendant's appeal is dismissed.
    Defendant makes the following assignments of error in the record on appeal:
     Assignment of Error #1
        The Court erred in failing to dismiss the paternity action based upon Res Judicata[.]
        Exception #1. (Rp 30)

     Assignment of Error #2
        The Court erred in Ordering a blood test.
        Exception #2 (Rp 44)
        Exception #3 (Rp 53)
        Exception #4 (Rp 54)

     Assignment of Error #3
        The Court erred in admitting the results of the blood test into evidence.
        Exception #5 (Tp 338-339)
        Exception #6 (Tp 357)
        Exception #7 (Tp 361-362)

     Assignment of Error #4
        The Court erred in refusing to allow testimony and evidence about a slander case against Plaintiff by Defendant.
        Exception #8 (Tp 598-602)

     Assignment of Error #5
        The Court erred in refusing to allow evidence of a lawsuit brought by Prosecuting witness against the Defendant's father, alleging Defendant's father was the father of the child.
        Exception #9 (Tp 458-464)

     Assignment of Error #6
        The Court erred in its instructions to the jury.
        Exception #10 (Tp 452) (Tp 603-606)
        Exception #11 (Tp 639)

(errors and bold typeface in original).
    “[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 . . . Rule 10.” N.C.R. App. P. 10(a). “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(c)(1). Our Rules of Appellate Procedure include an appendix which illustrates the proper way to draft an assignment of error; included in this appendix are the following three examples:
        Defendant assigns as error the following:

            1.    The court's admission of the testimony of the witness E.F., on the ground that the testimony was hearsay.

            2.    The court's denial of the defendant's motion for a directed verdict at the conclusion of all of the evidence, on the ground that plaintiff's evidence as a matter of law established his contributory negligence.

            3.    The court's instructions to the jury . . . explaining the doctrine of last clear chance, on the ground that the doctrine was not correctly explained.

N.C.R. App. P. Appendix C, Table 4, Part B (emphasis added) (examples of citations to record and transcript omitted). Where an appellant makes assignments of error without stating the grounds therefore, as is required by the rules and demonstrated in the appendix to the rules, the exceptions underlying the assignments oferror are deemed abandoned. Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988); see also Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 10-11 (1994) (discussing assignments of error which violated N.C.R. App. P. 10 because they were not stated without argumentation, did not specify the legal basis of the alleged errors, and did not direct this Court to the alleged errors with clear and specific transcript references). Likewise, where an argument in an appellant's brief does not correspond to an assignment of error in the record, the assignment of error is deemed abandoned pursuant to Rule 28. State v. Purdie, 93 N.C. App. 269, 278, 377 S.E.2d 789, 794 (1989). Where an issue is deemed abandoned by an appellate court, the corresponding assignment or error is dismissed. State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998).
    In the instant case, assignments of error two, three, four, five, and six state no legal basis whatsoever for the error they purport to assign. Therefore, these assignments of error are deemed abandoned and are dismissed.
    Assignment of error number one asserts res judicata as the legal basis for assigning error to the trial court's denial of defendant's motion to dismiss. Defendant contends that the present action is barred by a default judgment previously entered in superior court, which found the complaining witness in the presentcase liable for slandering defendant by alleging that he fathered her son. Though the assignment of error mentions only res judicata, defendant does not actually make an argument with respect to res judicata in his brief. Rather, defendant's brief relies heavily on the doctrine of collateral estoppel as a ground for appellate relief:
        Whether you call it collateral estoppel, res judicata or Estoppel by Judgment, it is unquestioned that the issue in the [prior] proceeding . . . was paternity and that it was alleged that McClain was the mother of the child and Howell was not the father. . . . The issue has been decided. . . . While Res Judicata precludes a subsequent action based on the same claim, collateral estoppel, or Estoppel by Judgment bars subsequent determination of the same issue, even though the action premised upon a different claim.

(errors in original; emphasis supplied).
    Res judicata and collateral estoppel are related, but separate, legal doctrines. See Whitacre P'ship v. Biosignia, Inc., 358 N.C. 1, 15-16, 591 S.E.2d 870, 880 (2004). “North Carolina currently recognizes both doctrines in their traditional guise.” Thomas M. McInnis & Assocs., Inc. v. Hall, 318 N.C. 421, 429, 349 S.E.2d 552, 557 (1986).
        [U]nder res judicata as traditionally applied, a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them. When the plaintiff prevails, his cause of action issaid to have “merged” with the judgment; where defendant prevails, the judgment “bars” the plaintiff from further litigation. In either situation, all matters, either fact or law, that were or should have been adjudicated in the prior action are deemed concluded.

Id. at 428, 349 S.E.2d at 556; see also State ex rel. Tucker v. Frinzi, 344 N.C. 411, 413-14, 474 S.E.2d 127, 128 (1996); Hales v. N.C. Ins. Guar. Ass'n, 337 N.C. 329, 333, 445 S.E.2d 590, 594 (1994). “Under collateral estoppel as traditionally applied, a final judgment on the merits prevents relitigation of issues actually litigated and necessary to the outcome of the prior action in a later suit involving a different cause of action between the parties or their privies.” Thomas M. McInnis & Assocs., 318 N.C. at 428, 349 S.E.2d at 557; see also Tucker, 344 N.C. at 414, 474 S.E.2d at 128-29; Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 166-67, 557 S.E.2d 610, 613 (2001), aff'd per curiam, 355 N.C. 485, 562 S.E.2d 422 (2002).
    Thus, defendant's brief, which contends that the trial court erred by denying his motion to dismiss because the central issue involved in the present case has already been decided, does not correspond to the assignment of error in the record, which alleges that the claim asserted in the present case is identical to a previously adjudicated lawsuit.
    Moreover, the inadequacy of the record on appeal does notdemonstrate that defendant ever presented collateral estoppel to the trial court as a bar to the present action. “Our rules require appellants to present complete records, which are in final and proper form.” Duke Univ. v. Bishop, 131 N.C. App. 545, 546, 507 S.E.2d 904, 905 (1998).
        The record on appeal in civil actions . . . shall contain . . . so much of the evidence, set out in the form provided in Rule 9(c)(1), as is necessary for an understanding of all errors assigned, or a statement specifying that the verbatim transcript of proceedings is being filed with the record pursuant to Rule 9(c)(2), or designating portions of the transcript so filed; . . . [and] copies of all other papers filed and statements of all other proceedings had in the trial court which are necessary to an understanding of all errors assigned unless they appear in the verbatim transcript of proceedings which is being filed with the record pursuant to Rule 9(c)(2).

N.C.R. App. P. 9(a)(1)(e),(j). The slander judgment, upon which defendant's estoppel arguments are based, has not been made a part of the record on appeal because it is neither attached to any documents which are already included in the record on appeal pursuant N.C.R. App. P. 9(d)(1), nor separately filed with this Court pursuant to N.C.R. App. P. 9(d)(2). The omission of this essential document precludes effective appellate review. N.C.R. App. P. 9(a)(1)(j).
    Defendant's answer and motion to dismiss in the trial court division asserted res judicata, not collateral estoppel, as a barto the paternity action, and the district court order summarily denied defendant's motion to dismiss. Defendant has not provided a transcript of oral argument in the trial court on defendant's motion to dismiss. The trial transcript does not contain any oral arguments pertaining to the application of either res judicata or collateral estoppel. Therefore, we can discover nothing in the record to reflect that the trial court was ever presented with the issue of whether the paternity action was barred by collateral estoppel. It is elementary that “[c]ontentions not raised at trial may not be raised for the first time on appeal.” Travis v. Knob Creek, Inc., 94 N.C. App. 374, 376, 380 S.E.2d 380, 382 (1989) (citation omitted).
    “The judgments of a trial court are presumed to be correct, and the burden is on the appellant to rebut the presumption of verity. The Rules of Appellate Procedure, if followed, provide an appealing party a means by which it can properly attack judgments, orders, and rulings of a trial court in order to show prejudicial error.” Wachovia Bank & Trust Co., N.A. v. Southeast Airmotive, Inc., 91 N.C. App. 417, 420, 371 S.E.2d 768, 770 (1988). “If the appealing party fails to properly utilize the Rules of Appellate Procedure, the presumption of verity will not be overcome, and the appellate courts will not search the record or the transcript in order to reverse the judgments, orders and rulings of a trial courthaving proper jurisdiction.” Id. “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).
    Defendant's numerous and substantial violations of the rules, coupled with his failure to demonstrate that the trial court was presented with the argument he now makes on appeal, hampers our ability to conduct appropriate appellate review of the trial court's order. Though we are not unmindful of the need for litigants to enjoy appellate review, the circumstances of the present appeal make review impracticable. Dismissal is therefore warranted.
    Dismissed.
    Judge HUNTER concurs.
    Judge TIMMONS-GOODSON concurs in the result.
    Report per Rule 30(e).

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