Appeal by plaintiff from order and judgment entered 11
February 2004 by Judge Anderson Cromer in Superior Court, Guilford
County. Heard in the Court of Appeals 2 February 2005.
Hicks McDonald Noecker LLP, by David W. McDonald, for
Constangy, Brooks & Smith, LLC, by John J. Doyle, Jr. and Jill
Stricklin Cox, for defendant-appellee.
Sylvia Youse (plaintiff) was employed by Duke Energy
Corporation (defendant) from 8 October 1984 to 21 March 2002.
Plaintiff became a Quality Assurance Analyst (QAT Analyst) for
defendant on 1 June 1999. The QAT Analyst job description
contained the following provision:
I. POSITION PURPOSE
Monitors and evaluates the quality
of inbound telephone calls.
Document[s] quality issues and
performance measures for management
review . . . . Provide[s]
information to assist in the
feedback and formal education
process of individuals on the phone.
Provides subject matter expertise
regarding call segment processes and
call criteria. Informal feedback
and auditing of non-call work is
also summarized and audited to
assure quality issues are addressed.
II. MAJOR ACCOUNTABILITIES/ESSENTIAL DUTIES
. . . .
2. . . .
. . . .
B. Maintains appropriate
credibility needed to
assure that quality
scores are used
effectively to improve
performance of Customer
Plaintiff and her husband owned a house in Mebane, North
Carolina (the Mebane house), which they leased to their son and
daughter-in-law. Defendant provided electrical service to theMebane house. Plaintiff's son and daughter-in-law arranged to move
out of the Mebane house in February 2002. Electrical service was
scheduled to be changed from plaintiff's daughter-in-law's name to
plaintiff's name on 18 February 2002. However, the electrical
service was disconnected on 11 February 2002.
Plaintiff telephoned defendant on 11 February 2002 and
inquired as to why the electrical service was not working.
Plaintiff spoke with customer service representative Demishie Grier
(Grier), who informed plaintiff that the electrical service had
been disconnected for non-payment. Plaintiff and Grier began to
disagree as to whether the electrical service should be turned back
on. When plaintiff asked to speak with a supervisor, Grier stated
that Grier could not transfer the call but would have a supervisor
call plaintiff. Plaintiff stated that she could not be called back
since she was on a cell phone and had an unreliable connection.
Plaintiff and Grier thereafter ended their telephone conversation.
Plaintiff then telephoned call service response and spoke with
Billy Kingry (Kingry), a service response specialist. Plaintiff
had originally hired Kingry to work for defendant and was Kingry's
former supervisor. Plaintiff asked Kingry to look at the Mebane
house account and told him that she needed electrical service at
the Mebane house. Kingry then arranged to have the electrical
service turned back on at the Mebane house. This reconnection of
the electrical service was in violation of defendant's "non-pay
reconnect" guidelines, which provide that a reconnect of an account
is only available once payment has been made on the account. Kingry told Yolanda Peterson (Peterson), a HR Consultant for
defendant, that he did "ma[k]e an exception for [plaintiff] because
of [Kingry and plaintiff's] previous relationship and [plaintiff's]
knowledge of how things work."
The following day, on 12 February 2002, defendant determined
that the electrical service at the Mebane house had been
erroneously reconnected. The account was scheduled for another
non-pay disconnect, and a disconnect notice was delivered to the
Peterson received an email on 18 February 2002 from Dawn
Morrison (Morrison), plaintiff's supervisor. The email stated that
plaintiff may have engaged in "very inappropriate conduct." The
email also recommended that an investigation take place. Peterson
began an investigation into plaintiff's conduct, during which
Peterson interviewed numerous individuals and reviewed the history
of the Mebane house account. Plaintiff was removed from
defendant's employment on 8 March 2002 pending the completion of
During the course of the investigation, Peterson learned that
in January 2002, plaintiff had accessed her daughter-in-law's
account at the Mebane house. This activity was in violation of
defendant's procedures which prohibit employees from working on
their own, their co-workers,' or their family members' electrical
service accounts. Peterson also determined that plaintiff's
conduct, when plaintiff spoke with Grier, included "hostile and
intimidating statements" and an "attempt to persuade . . . Grier tocircumvent established call procedures." Finally, Peterson found
that plaintiff "circumvent[ed] . . . customer service processes"
when she called Kingry directly in an effort to restore the
electrical service, and that she made false statements to Kingry
about the Mebane house account. Due to this conduct, Peterson
determined that plaintiff was unable to satisfy the requirements of
her position as a QAT Analyst. Peterson found that plaintiff
compromised her credibility and her
relationship with [defendant's] employees when
she completely disregarded the very same
customer service procedures that she was
charged with administering, made intimidating
statements to a customer service specialist
and service response employee, and abused her
position [with defendant] to achieve her own
Peterson recommended to Lynetta Chisolm (Chisolm), General
Manager of Customer Contact Services, that plaintiff be discharged.
Chisolm agreed, and plaintiff's employment with defendant was
terminated on 21 March 2002.
Plaintiff filed a complaint against defendant on 20 September
2002, alleging wrongful termination in violation of public policy
based on age and handicap discrimination, negligent infliction of
emotional distress, a violation under the Wage and Hour Act, N.C.
Gen. Stat. § 95-25.1_95-25.25, and punitive and special damages.
That same day, plaintiff filed a complaint in the United States
District Court for the Middle District of North Carolina (Middle
District) alleging identical facts to those in the state court
complaint. The complaint filed in the Middle District alleged
violations of the Age Discrimination in Employment Act of 1967(ADEA), 29 U.S.C. § 621_634, the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. § 12101_12213, and the Employment Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001_1461.
Defendant filed a motion for summary judgment in the Middle
District case on 24 October 2003. In an order and recommendation
dated 15 December 2003, a magistrate judge recommended that
defendant's motion for summary judgment be granted. Youse v. Duke
Energy Corporation, 1:02CV00808 (M.D.N.C. 2003). Plaintiff
objected to the recommendation, and a district court judge made a
de novo determination of the magistrate judge's recommendation.
See 28 U.S.C. § 636 (b)(1) (2004). The district court judge
adopted the magistrate judge's recommendation and ordered that
defendant's motion for summary judgment be granted as to all claims
on 23 January 2004.
Defendant filed a motion for summary judgment in state court
on 21 January 2004. The trial court granted defendant's motion in
an order entered 11 February 2004. Plaintiff appeals.
 We first address defendant's argument that plaintiff's
appeal should be dismissed due to plaintiff's violations of the
North Carolina Rules of Appellate Procedure. Defendant specifies
that plaintiff has violated the Rules by: (1) failing to reference
the record page numbers on which her assignments of error appear,
N.C.R. App. P. 28(b)(6); (2) referencing the incorrect
assignment of error in support of Argument D in her brief, see id
(3) using argumentative language when summarizing the facts of thecase, see
N.C.R. App. P. 28(b)(5); (4) failing to reference pages
of the transcript or record on appeal in connection with her
factual assertions, see id
.; (5) failing to include relevant
portions of statutes in the Appendix to her brief, see
P. 28(d)(1)(c); (6) using the incorrect font size for the footnotes
in her brief, see
N.C.R. App. P. 26(g); (7) providing the improper
citations for several of the authorities on which plaintiff's brief
N.C.R. App. P. 28(b)(6); and (8) filing her Appeal
Information Statement two weeks after the date her brief was due to
be filed, see
N.C.R. App. P. 41(b)(2).
Although we recognize that plaintiff failed to comply with
several of our Rules of Appellate Procedure, we do not find that
dismissal of the appeal is proper in this case. Despite the Rules
violations, we are able to determine the issues in this case on
appeal. Furthermore, we note that defendant, in filing a brief
that thoroughly responds to plaintiff's arguments on appeal, was
put on sufficient notice of the issues on appeal. See Viar v. N.C.
Dep't of Transportation
, 359 N.C. 400, 402, 610 S.E.2d 360, 361
(2005). Since plaintiff's Rules violations are not "so egregious
as to invoke dismissal[,]" Symons Corp. v. Insurance Co. of North
, 94 N.C. App. 541, 543, 380 S.E.2d 550, 552 (1989), we
elect to review the significant issues of this appeal pursuant to
N.C.R. App. P. 2. See Symons
, 94 N.C. App. at 543, 380 S.E.2d at
 Plaintiff's first assignment of error contends that thetrial court erred in granting summary judgment in favor of
defendant on plaintiff's claim of wrongful discharge against public
policy. The trial court's order stated the following:
1. Defendant is entitled to summary judgment
on plaintiff's claim of wrongful
discharge against public policy. . . .
The same issues that are dispositive of
plaintiff's claim of wrongful discharge
against public policy already have been
litigated to final judgment by the
[Middle District] in plaintiff's
companion lawsuit against defendant
. . . . Therefore, plaintiff's claims in
this state court proceeding are barred by
the doctrine of collateral estoppel.
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). The moving party to a summary judgment motion can prevail
by showing that "the other party cannot overcome an affirmative
defense which would bar the claim." Caswell Realty Assoc. v.
, 128 N.C. App. 716, 720, 496 S.E.2d 607, 610 (1998).
Collateral estoppel is an affirmative defense. See
N.C. Gen. Stat.
§ 1A-1, Rule 8 (2003); Johnson v. Smith
, 97 N.C. App. 450, 453, 388
S.E.2d 582, 584, disc. review denied
, 326 N.C. 596, 393 S.E.2d 878
Collateral estoppel prevents "the subsequent adjudication of
a previously determined issue, even if the subsequent action is
based on an entirely different claim." Whitacre P'ship v.
, 358 N.C. 1, 15, 591 S.E.2d 870, 880 (2004). Anaction is barred under the doctrine of collateral estoppel "even if
the first adjudication is conducted in federal court and the second
in state court." McCallum v. N.C. Coop. Extension Serv.
, 142 N.C.
App. 48, 52, 542 S.E.2d 227, 231, disc. review denied
, 353 N.C.
452, 548 S.E.2d 527 (2001). Collateral estoppel will apply when:
"(1) a prior suit result[ed] in a final judgment on the merits; (2)
identical issues [were] involved; (3) the issue was actually
litigated in the prior suit and necessary to the judgment; and (4)
the issue was actually determined." McDonald v. Skeen
, 152 N.C.
App. 228, 230, 567 S.E.2d 209, 211, disc. review denied
, 356 N.C.
437, 571 S.E.2d 222 (2002) (citing Thomas M. McInnis & Assoc., Inc.
, 318 N.C. 421, 429-30, 349 S.E.2d 552, 557-58 (1986)). In
determining what issues were actually litigated or decided by the
earlier judgment, the court in the second proceeding is "'free to
go beyond the judgment roll, and may examine the pleadings and the
evidence [if any] in the prior action.'" Miller Building Corp. v.
NBBJ North Carolina, Inc.
, 129 N.C. App. 97, 100, 497 S.E.2d 433,
435 (1998) (alteration in original) (quoting 18 James W. Moore et
al., Moore's Federal Practice
§ 132.03 [i] (3rd ed. 1997)).
Although plaintiff's companion Middle District case was based
on different legal claims than the case before us, the state court
and Middle District cases involved identical underlying factual
issues. "To the extent the U.S. District Court ruled on these
issues, plaintiff is barred from relitigating the issues in state
court." Williams v. City of Jacksonville Police Dep't
, 165 N.C.
App. 587, 594, 599 S.E.2d 422, 429 (2004). We conclude thatplaintiff's state law claim that she was discriminated against on
the basis of her age and disability in violation of North
Carolina's public policy is barred by collateral estoppel.
N.C. Gen. Stat. § 143-422.2 (2003) states: "It is the public
policy of this State to protect and safeguard the right and
opportunity of all persons to seek, obtain and hold employment
without discrimination . . . on account of race, religion, color,
national origin, age, sex or handicap by employers which regularly
employ 15 or more employees." Our Supreme Court has directed that
"we look to federal decisions for guidance in establishing
evidentiary standards and principles of law to be applied in
discrimination cases." Dept. of Correction v. Gibson
, 308 N.C.
131, 136, 301 S.E.2d 78, 82 (1983); see also Brewer v. Cabarrus
, 130 N.C. App. 681, 685-86, 504 S.E.2d 580, 584
(1998), disc. review denied
, 350 N.C. 91, 527 S.E.2d 662 (1999).
In this case, the Middle District considered plaintiff's
claims for both age discrimination under the ADEA
, and disability
discrimination under the ADA
. While plaintiff argues that the
Middle District never addressed the issue of whether North Carolina
public policy was violated, plaintiff also "contends that her
discharge was motivated by defendant's discrimination based upon
her age and disability," the same factual issues decided by the
The Middle District granted summary judgment to defendant on
plaintiff's ADEA claim since, although plaintiff was able to
establish a prima facie case of discrimination, defendant "ha[d]proffered substantial evidence of a legitimate, nondiscriminatory
reason for [p]laintiff's discharge, and [p]laintiff ha[d] failed to
produce sufficient evidence that [d]efendant's proffered reason
[wa]s a pretext for discrimination." Specifically, the Middle
District found that "[d]efendant's evidence demonstrates that
[p]laintiff violated [defendant's] policy against working orders to
a relative's account, engaged in inappropriate behavior with a
customer service specialist over the telephone, and abused her
status as a QAT analyst and former supervisor to circumvent
established company procedures." Since the Middle District
determined that plaintiff had failed to prove that defendant's
proferred reason for plaintiff's termination was a pretext for
discrimination, plaintiff's state law claim based on the same
factual allegation of age discrimination is collaterally estopped.
Similarly, the Middle District granted summary judgment to
defendant on plaintiff's ADA claim. The Middle District found that
plaintiff had failed to even establish a prima facie case of
Plaintiff has not offered any further evidence
of actions by [defendant] which would tend to
show resentment of or animus towards
[p]laintiff because of her "disability."
Rather, the record evidence demonstrates a
long history of accommodations by [defendant]
for [p]laintiff's personal and health needs.
Furthermore, [p]laintiff admits that no one at
[defendant] ever made any derogatory remarks
about her health.
Again, since the Middle District determined that plaintiff had
failed to prove, under the ADA, that she was discriminated against
based on her disability, we find that plaintiff's state law claimbased on the same factual allegation of disability discrimination
is collaterally estopped.
 We also find that collateral estoppel bars plaintiff's
claim for negligent infliction of emotional distress. To establish
a claim for negligent infliction of emotional distress, a plaintiff
must prove that: "(1) the defendant negligently engaged in conduct,
(2) it was reasonably foreseeable that such conduct would cause the
plaintiff severe emotional distress . . . , and (3) the conduct did
in fact cause the plaintiff severe emotional distress." Johnson v.
, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). To
prove that a defendant "negligently engaged in conduct," a
plaintiff must show: (1) a legal duty; (2) a breach of that duty;
and (3) that damages were proximately caused by such breach. Tise
v. Yates Construction Co.
, 345 N.C. 456, 460, 480 S.E.2d 677, 680
In this case, plaintiff claims that defendant breached its
duty to plaintiff to not violate the public policy of North
Carolina by discriminating against her on the basis of her age and
disability. However, as stated above, the Middle District
determined that defendant did not discriminate against plaintiff on
either the basis of her age or disability. Assuming arguendo
defendant had a duty to plaintiff to not violate the public policy
of North Carolina, the Middle District has already determined that
a breach of such duty did not occur. Therefore, plaintiff's claim
for negligent infliction of emotional distress is collaterally
estopped.  Plaintiff argues that defendant has waived its right to a
collateral estoppel defense because defendant failed to oppose
plaintiff's strategy of filing two different lawsuits. Plaintiff
contends that defendant, by not objecting to the Middle District
action on the grounds of prior pending action, waived a collateral
estoppel defense. In support of her argument, plaintiff cites
Bockweg v. Anderson
, 333 N.C. 486, 428 S.E.2d 157 (1993) and
Howerton v. Grace Hospital
, 130 N.C. App. 327, 502 S.E.2d 659
(1998). We find Bockweg
inapplicable to this case.
First, neither Bockweg
involved the doctrine of
collateral estoppel, or issue preclusion, but rather involved the
doctrine of res judicata, or claim preclusion. Bockweg
, 333 N.C.
at 492, 428 S.E.2d at 161; Howerton
, 130 N.C. App. at 330, 502
S.E.2d at 661. Second, Bockweg
did not address
whether a defendant waives the right to a collateral estoppel
defense, but rather dealt with the issue of whether a party has
consented to claim splitting. Bockweg
held that "[f]ailure to
timely object to the other action pending may be viewed as consent
to the claim-splitting." 333 N.C. at 496, 428 S.E.2d at 164.
held that "when a party consents to the
dismissal without prejudice of one or more (but not all) of several
claims, they tacitly consent to claim splitting." 130 N.C. App. at
331, 502 S.E.2d at 662. In this case, defendant does not challenge
plaintiff's claim-splitting. Rather, defendant only argues that
plaintiff's claims are barred by collateral estoppel and in fact
raised this defense as soon as the defense became available todefendant. Nothing in Bockweg
suggests that by
consenting to claim-splitting, a defendant waives the defense of
collateral estoppel. We find that plaintiff's claims for
discrimination are barred by collateral estoppel, and thereby serve
the purpose of the doctrine: to "protect litigants from the
burden of relitigating previously decided matters and promot[e]
judicial economy by preventing needless litigation." Bockweg
N.C. at 491, 428 S.E.2d at 161.
 Plaintiff also argues that her federal action was not a
"prior action" but rather a "subsequent" or "simultaneous" action.
We disagree. The magistrate judge's recommendation disposing of
the federal action was filed on 15 December 2003, and the
recommendation was adopted by the district court judge on 23
January 2004. The hearing on the state court motion for summary
judgment did not occur until 9 February 2004. Therefore, at the
time the state trial court heard defendant's motion for summary
judgment and considered the issue of collateral estoppel, the
Middle District case was complete and the issues common to both
cases had already been decided. See Houghton v. Harris
, 243 N.C.
92, 95, 89 S.E.2d 860, 863 (1955); and Leary v. Land Bank
, 215 N.C.
501, 510, 2 S.E.2d 570, 575 (1939) ("'A prior judgment upon the
same cause of action sustains the plea of former recovery, although
the judgment is in action commenced subsequently to the one in
which it is pleaded. The date is of no consequence; it is the fact
of an adjudication between the same parties upon the same subject
matter, which gives effect to the former recovery.'" (citationomitted)).
Since our determination of the foregoing issues are
dispositive of this case on appeal, we need not address plaintiff's
remaining assignments of error. For those assignments of error not
addressed in plaintiff's brief, we deem them abandoned. N.C.R.
App. P. 28(b)(6).
Judge GEER concurs.
Judge TYSON dissents with a separate opinion.
TYSON, Judge dissenting.
The majority's opinion recites many of plaintiff's violations
of our appellate rules, yet decides to reach the merits of
plaintiff's appeal and affirms the trial court's grant of summary
judgment in defendant's favor. Plaintiff egregiously failed to
comply with multiple provisions of the North Carolina Rules of
Appellate Procedure. This appeal should be dismissed. I
Plaintiff's appellate rules violations have impeded
comprehension of the issues on appeal and frustrated the appellate
process. This appeal is not properly before us and should be
dismissed. See Steingress v. Steingress, 350 N.C. 64, 65-67, 511
S.E.2d 298, 299-300 (1999) (when the appellant's brief does not
comply with the rules by properly setting forth exceptions and
assignments of error with reference to the transcript andauthorities relied on under each assignment, it is difficult if not
impossible to properly determine the appeal) (citing State v.
Newton, 207 N.C. 323, 329, 177 S.E. 184, 187 (1934).
Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure states an appellant's brief shall contain:
An argument, to contain the contentions of the
appellant with respect to each question
presented. Each question shall be separately
stated. Immediately following each question
shall be a reference to the assignments of
error pertinent to the question, identified by
their numbers and by the pages at which they
appear in the printed record on appeal.
Assignments of error not set out in the
appellant's brief, or in support of which no
reason or argument is stated or authority
cited, will be taken as abandoned.
N.C.R. App. P. 28(b)(6) (2004). Plaintiff failed to comply with
N.C.R. App. P. 28(b)(5) (2004) also requires an appellant's
brief contain a non-argumentative summary of all material facts
underlying the matter in controversy . . . supported by references
to pages in the transcript of proceedings, the record on appeal, or
exhibits, as the case may be. The Rules further provide relevant
portions of statutes, rules, or regulations, the study of which is
required to determine questions presented in the brief must be
reproduced as appendices to the brief. N.C.R. App. P. 28(d)(1)(c)
(2004). N.C.R. App. P. 26(g)(1) (2004) mandates [a]ll printed
matter [in a brief] must appear in at least 12-point type . . .
[t]he body of text shall be presented with double spacing between
each line of text. Plaintiff violated or failed to comply with
these provisions. Rule 12 states the record on appeal must be filed within
fifteen days after it has been settled. N.C.R. App. P. 12(a)
(2004). Rule 28 requires an appellant's brief contain
[i]dentification of counsel by signature, typed name, office
address and telephone number and [t]he proof of service required
by Rule 26(d). N.C.R. App. P. 28(b)(8)-(9) (2004). Papers
presented for filing shall contain . . . proof of service . . .
certified by the person who made service. N.C.R. App. P. 26(d)
(2004). The body of the document shall at its close bear the . .
. manuscript signature of counsel of record. N.C.R. App. P.
26(g)(3) (2004). Finally, each appellant must file an Appeal
Information Statement at or before the time appellant's brief is
due and must serve a copy of the statement upon all other parties
to the appeal. N.C.R. App. P. 41(b)(2) (2004). Plaintiff also
failed to comply with any of these provisions.
In order to reach the merits of plaintiff's argument and
reverse the trial court's decision, this Court is limited to the
issues properly presented for appeal. N.C.R. App. P. 10(a) (2004).
Plaintiff's appeal and brief contains at least fourteen violations
of the North Carolina Rules of Appellate Procedure.
As noted by the majority's opinion, plaintiff violated the
Rules by: (1) failing to reference the record page numbers on
which her assignments of error appear, see N.C.R. App. P. 28(b)(6);
(2) referencing the incorrect assignment of error in support of
argument D in her brief, see id.; (3) using argumentative language
when summarizing the facts of the case, see N.C.R. App. P.28(b)(5); (4) failing to reference pages of the transcript or
record on appeal in connection with her factual assertions, see
id.; (5) failing to include relevant portions of statutes in the
appendix to her brief, see N.C.R. App. P. 28(d)(1)(c); (6) using
the incorrect font size for footnotes in her brief, see N.C.R. App.
P. 26(g); (7) providing improper citations for several of the
authorities on which plaintiff's brief relies, see N.C.R. App. P.
28(b)(6); and (8) filing her Appeal Information Statement two weeks
after the date her brief was due to be filed, see N.C.R. App. P.
Further review of the record and briefs reveals plaintiff
also: (9) presented argument in footnotes, see N.C.R. App. P.
26(g)(1), see also Lewis v. Craven Regional Medical Center, 122
N.C. App. 143, 147-48, 468 S.E.2d 269, 273 (1996); (10) served the
record on appeal late (order entered 21 April 2004 extending time
to serve record on appeal to 12 May 2004; record on appeal served
15 June 2004), see N.C.R. App. P. 12(a); (11) failed to sign her
reply brief, see N.C.R. App. P. 28(b)(8) and N.C.R. App. P.
26(g)(3); (12) failed to sign the certificate of service in her
reply brief, see N.C.R. App. P. 28(b)(9) and N.C.R. App. P. 26(d);
(13) failed to sign the certificate of filing by first class mail
in her reply brief, see N.C.R. App. P. 26(a)(1); and (14) failed to
reference any assignment of error in support of Argument E in her
brief, see N.C.R. App. P. 28(b)(6). Plaintiff's reply brief should
be stricken. See N.C.R. App. P. 25(b) and N.C.R. App. P. 34(b)(3).
In Shook v. County of Buncombe, this Court dismissed theappellant's brief due to numerous violations of the Rules. 125
N.C. App. 284, 284, 480 S.E.2d 706, 706 (1997). The record on
appeal in Shook consisted of three volumes containing 767 pages and
numerous and complicated issues to be considered on appeal. Id. at
286, 480 S.E.2d at 707. We stated the violations in Shook
highlight[ed] why our appellate rules are a necessity. Id.
We further stated, [w]hen we are presented with an appeal
such as the instant one, the rules are not merely ritualistic
formalisms, but are essential to our ability to ascertain the
merits of an appeal. Id. We concluded by repeating that [o]ur
rules are mandatory, and in fairness to all who come before this
Court, they must be enforced uniformly. Id. at 287, 480 S.E.2d at
708 (citation omitted).
Here, the record on appeal contains three volumes consisting
of 609 pages and appellant's brief purports to present five
questions for review. Appellant's numerous rules violations have
made it difficult if not impossible to properly determine the
appeal. Steingress, 350 N.C. at 66, 511 S.E.2d at 299 (citation
omitted). Because [o]ur rules are mandatory, and in fairness to
all who come before this Court, they must be enforced uniformly[,]
. . . [plaintiff's] appeal [should be] dismissed. Shook, 125 N.C.
App. at 287, 480 S.E.2d at 708 (internal citation omitted).
II. Rule 2
The majority's opinion recognizes plaintiff egregiously failed
to comply with the appellate rules, yet decides to review the
merits of plaintiff's claims by invoking Rule 2 of the NorthCarolina Rules of Appellate Procedure.
Rule 2 states:
[t]o 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 by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon 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) (emphasis supplied).
Our Supreme Court stated in Steingress v. 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.' Wolfe
v. Villines, 171 N.C. App. ___, ___, 610 S.E.2d 754, 761 (2005) (J.
Tyson dissenting) (citing Steingress, 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 repeatedly held that 'there is
no basis under Appellate Rule 2 upon which we should waive
plaintiff's violations of Appellate Rules . . . .' Wolfe, 171
N.C. App. at ___, 610 S.E.2d at 761 (quoting Holland v. Heavner,
164 N.C. App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms
v. Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985))).
Further, our Supreme Court recently held in Viar v. N.C. Dep't
of Transp., [i]t is not the role of the appellate courts . . . to
create an appeal for an appellant. [T]he rules of Appellate
Procedure must be consistently applied; otherwise, the Rules becomemeaningless, and an appellee is left without notice of the basis
upon which an appellate court might rule. 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) (per curiam) ([t]he majority opinion in the
Court of Appeals, recognizing the flawed content of plaintiff's
appeal, applied Rule 2 of the Rules of Appellate Procedure to
suspend the Rules).