An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced
ure.
NO. COA04-309
NORTH CAROLINA COURT OF APPEALS
Filed: 7 December 2004
PIEDMONT INDUSTRIAL EQUIPMENT,
INC.,
Plaintiff,
v
.
Gaston County
No. 02 CVS 3429
GASTON COUNTY,
Defendant.
Appeal by defendant from judgment entered 17 October 2003 by
Judge Jesse B. Caldwell, III, in Gaston County Superior Court.
Heard in the Court of Appeals 4 November 2004.
Arthurs & Foltz, by Douglas P. Arthurs and Tara R. Sain, for
plaintiff-appellee.
Stott, Hollowell, Palmer & Windham, L.L.P., by Grady B. Stott,
and Assistant Gaston County Attorney Kathleen M. Gadd, for
defendant-appellant.
TYSON, Judge.
Gaston County (defendant) appeals the trial court's judgment
entered in favor of Piedmont Industrial Equipment, Inc.,
(plaintiff) finding plaintiff's use of its real property (the
Property) did not violate the Gaston County Zoning Ordinance (the
Ordinance). We dismiss the appeal.
I. Background
Plaintiff is a North Carolina corporation doing business in
Gaston County, North Carolina. Its principal business is the
purchase and sale of power plant machinery, such as electric,
heating, air conditioning, ventilating, and plumbing supplies. Itowns the Property, which consists of 4.0365 acres and is situated
within an Industrial General (I-G) zoning district as designated
by the Gaston County Board of Commissioners (the Board).
Plaintiff uses the Property in connection with its business of
buying and selling commercial air conditioners.
On 13 September 2002, plaintiff filed a declaratory judgment
asking the court to find that plaintiff's use of the Property
complied with I-G zoning. Defendant responded by arguing
plaintiff's use of the Property for storage of salvaged units
violates the Ordinance.
The case was tried without a jury on 25 August 2003. The
trial court found plaintiff's use of the Property was a use as a
matter of right in the Industrial General District and did not
violate the Ordinance and ruled against defendant. Defendant
appeals.
II. Issue
The dispositive issue before this Court is whether defendant
has complied with the North Carolina Rules of Appellate Procedure.
III. North Carolina Rules of Appellate Procedure
Defendant argues the trial court erred in finding as fact
plaintiff was in the business of buying and selling commercial air
conditioning equipment and that plaintiff's use of the Property
complied with the Ordinance. We decline to reach the merits of
defendant's claims.
The North Carolina Rules of Appellate Procedure outline the
formatting and content requirements for briefs submitted forappellate review. Our appellate courts have consistently held that
these rules are 'mandatory and that failure to follow [them] will
subject an appeal to dismissal.' Holland v. Heavner, ___ N.C.
App. ___, ___, 595 S.E.2d 224, 226 (2004) (quoting Steingress v.
Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999) (citations
omitted)).
A. Rule Violations
Rule 28(b) of the North Carolina Rules of Appellate Procedure
states in part:
An appellant's brief in any appeal shall
contain . . .
. . . .
(4) A statement of the grounds for appellate
review. Such statement shall include citation
of the statute or statutes permitting
appellate review.
. . . .
(6) An argument, to contain the contentions of
the appellant with respect to each question
presented . . . . The body of the argument
shall contain citations of the authorities
upon which the appellant relies.
N.C.R. App. P. 28(b)(4) and (6) (2004) (emphasis supplied).
Rule 26(g)(1) requires a brief's text to be presented with
double spacing between each line of text. N.C.R. App. P. 26(g)(1)
(2004).
Defendant's brief fails to comply with the above three Rules
of Appellate Procedure. First, the brief does not include a
statement of the grounds for appellate review under a separate
heading as required by Rule 28(b)(4). We also find no suchstatement or citation to statutory authority warranting appellate
review included within defendant's argument. N.C.R. App. P.
28(b)(4).
Second, defendant's analysis under its assignments of errors
does not satisfy the requirements of Rule 28(b)(6). Defendant
cites two cases of authority addressing generally this Court's
standard of review on appeal. However, the discussion following
each assignment of error is purely argumentative without citations
of any authority upon which defendant relies. Failure to include
citation to authority in support of an argument results in
abandonment of the party's assignment of error. State v. Walters,
357 N.C. 68, 85-86, 588 S.E.2d 344, 355, cert. denied, ___ U.S.
___, 157 L. Ed. 2d 320 (2003); Byrne v. Bordeaux, 85 N.C. App. 262,
265, 354 S.E.2d 277, 279 (1987) (citing Groves & Sons v. State, 50
N.C. App. 1, 273 S.E.2d 465 (1980), cert. denied, 302 N.C. 396, 279
S.E.2d 353 (1981)).
Finally, the body of defendant's brief is typed in single
space. This technical defect compounds the basis for dismissal.
Steingress, 350 N.C. at 65, 511 S.E.2d at 299 (appeal dismissed for
failing to double space text and reference assignments of error in
the argument).
B. Rule 2
Rule 2 of the North Carolina Rules of Appellate Procedure
states:
To prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly provided bythese rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon the application of a
party or upon its own initiative, and may
order proceedings in accordance with its
directions.
N.C.R. App. P. 2 (2004).
Our Supreme Court noted in Steingress that Rule 2 relates to
the residual power of our appellate courts to consider, in
exceptional circumstances, significant issues of importance in the
public interest, or to prevent injustice which appears manifest to
the Court and only in such instances. 350 N.C. at 66, 511 S.E.2d
at 299-300 (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340
S.E.2d 358, 362 (1986)). This Court has held that 'there is no
basis under Appellate Rule 2 upon which we should waive plaintiff's
violations of Appellate Rules . . . .' Holland, ___ N.C. App. at
___, 595 S.E.2d at 227 (quoting Sessoms v. Sessoms, 76 N.C. App.
338, 340, 332 S.E.2d 511, 513 (1985)).
Our review of the entire record fails to disclose any
exceptional circumstances, significant issues, or manifest
injustices that warrant suspension of the Appellate Rules. We
decline to reach the merits of the case under Rule 2.
IV. Conclusion
This Court has the authority to dismiss an appeal for failing
to satisfy the timing, formatting, and content requirements
mandated by the appellate rules.
See N.C.R. App. P. 13(c) (2004)
(If an appellant fails to file and serve his brief within the time
allowed, the appeal may be dismissed . . . .); N.C.R. App. P.
14(d)(2) (2004) (If an appellant fails to file and serve his briefwithin the time allowed, the appeal . . . may be dismissed on
motion of any appellee . . . .); N.C.R. App. P. 25(a) (2004) (If
after giving notice of appeal . . . the appellant shall fail within
the times allowed by these rules or by order of court to take any
action . . . the appeal may on motion of any other party be
dismissed.); N.C.R. App. P. 28(a) (2004); N.C.R. App. P. 34 (2004)
(dismissal permitted as a sanction for frivolous appeals).
Our Supreme Court has recognized this power and has affirmed
this Court's decisions to dismiss appeals for appellate rules
violations.
See Steingress, 350 N.C. at 64, 511 S.E.2d at 298;
see
also Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361
(1979);
Walter Corporation v. Gilliam, 260 N.C. 211, 213, 132
S.E.2d 313, 315 (1963);
Woodburn v. N.C. State Univ., 156 N.C. App.
549, 551, 577 S.E.2d 154, 156 (granting motion to strike documents
that were included in the record in violation of the appellate
rules),
disc. rev. denied, 357 N.C. 470, 584 S.E.2d 296 (2003).
Defendant's three assignments of error are deemed abandoned
for failure to comply with Rules 26 and 28 of the North Carolina
Rules of Appellate Procedure. This appeal is dismissed.
Dismissed.
Judges TIMMONS-GOODSON and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***