TERRILYNNE WALKER, Plaintiff, v. WAYNE CHARLES WALKER, and GARY
S. WALKER, Defendants
Defendant's appeal from a judgment ordering specific performance of a separation
agreement and of an amendment to the agreement is dismissed because defendant failed to
properly preserve for appellate review the issues presented on appeal when he violated several
rules of appellate procedure.
Appeal by defendant from judgment entered 13 July 2004 by
Judge William M. Neely in Moore County District Court. Heard in
the Court of Appeals 13 September 2005.
Smith Debnam Narron Wyche Saintsing & Myers, L.L.P., by John
W. Narron and Lynn Wilson Lupton, for plaintiff-appellee.
Cheshire, Parker, Schneider, Bryan & Vitale, by Jonathan
McGirt, for defendant-appellant.
Defendant Wayne Walker appeals from a judgment ordering
specific performance of the separation agreement executed by
defendant and plaintiff Terrilynne Walker, and of an amendment to
the agreement. We dismiss the appeal.
The parties were married in 1965, and separated in early 2000
Shortly before separating, they started two businesses - Capital
Transaction Group, Inc. (CapTran), and Carolina Self Storage, Corp.(CSS). Defendant's brother, Gary Walker, provided funding for both
projects. On 28 February 2000 plaintiff and defendant executed a
separation agreement addressing child custody and support, alimony,
and division of marital property. On 25 September 2000 the parties
signed an Amendment to the separation agreement; plaintiff sold her
CapTran stock to Gary Walker, and relinquished her voting rights in
defendant's CSS stock.
On 29 January 2001 plaintiff filed suit against defendant for
breach of the separation agreement. Plaintiff alleged that the
separation agreement required defendant to pay plaintiff one half
of the $500,000 he had received in an arbitration proceeding, and
that he was refusing to pay her. Defendant filed an answer and
counterclaim on 26 March 2001. He denied plaintiff's entitlement
to specific performance of the separation agreement, and asserted
that the amendment was void ab initio, on the grounds that it was
improperly executed. In his counterclaim, defendant sought, inter
alia, to have the court (1) dismiss plaintiff's complaint; (2) set
aside the separation agreement and amendment, on grounds of
coercion and duress;
and (3) declare the amendment void based on
its improper execution. In her reply, plaintiff denied the
allegations of the counterclaim, and asserted that defendant was
estopped from arguing that the amendment was invalid. Plaintiffasked the court to dismiss defendant's counterclaim,
and to enforce
both the separation agreement and amendment.
In March 2002, defendant filed a motion for partial summary
judgment. In June 2002 the trial court granted summary judgment
for defendant on the issue of the amendment's improper execution,
but denied summary judgment on the issue of estoppel. Defendant
filed another summary judgment motion in July 2002, which was
denied in November 2002. In July 2001 plaintiff amended her
complaint to add two defendants, Gary Walker and CapTran. Before
trial, plaintiff dismissed her claim against CapTran.
On 12 July
2002 defendant filed a notice of voluntary dismissal of the part of
his counterclaim seeking to have the separation agreement set
aside; he did not dismiss his counterclaim to have the amendment
set aside. On 14 August 2002 plaintiff dismissed her original
complaint against defendant.
Following an October 2003 bench trial on defendant's
counterclaim, the trial court on 13 July 2004 entered judgment in
favor of plaintiff. The judgment ordered defendant to specifically
perform and comply with the terms of the separation agreement and
of the amendment. Defendant timely appealed from this order and
from the orders denying his pretrial motions for summary judgment.
The court also dismissed plaintiff's claims against defendant Gary
is not a party to this appeal.
We first review certain provisions of N.C. R. App. P. 10:
(a) . . . [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 this Rule 10. . . .
(1) . . . 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(a) and (c)(1). One purpose of this rule is to
'identify for the appellee's benefit all the errors possibly to be
urged on appeal . . . so that the appellee may properly assess the
sufficiency of the proposed record on appeal to protect his
position.' State v. Baggett & Penuel
, 133 N.C. App. 47, 48, 514
S.E.2d 536, 537 (1999) (quoting Kimmel v. Brett
, 92 N.C. App. 331,
335, 374 S.E.2d 435, 437 (1988)). In addition, Rule 10 allows our
appellate courts to 'fairly and expeditiously' review the
assignments of error without making a 'voyage of discovery' through
the record in order to determine the legal questions involved.
Rogers v. Colpitts
, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790
(1998) (quoting Kimmel,
92 N.C. App. at 335, 374 S.E.2d at 437
Furthermore, assignments of error [that are] . . . broad, vague,
and unspecific . . . . do not comply with the North Carolina Rules
of Appellate Procedure[.] In re Appeal of Lane Co.,
153 N.C. App.119, 123, 571 S.E.2d 224, 226-27 (2002). Moreover, it is long
settled that the scope of appellate review is limited to the
issues presented by assignments of error set out in the record on
appeal; where the issue presented in the appellant's brief does not
correspond to a proper assignment of error, the matter is not
properly considered by the appellate court
. Bustle v. Rice
N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (citation omitted)
We next apply these principles to the instant case. The
defendant set out 119 assignments of error, purporting to assign
error to almost every finding of fact and conclusion of law made by
the trial court. His assignments of error follow a repetitive
pattern, with each finding or conclusion the subject of three
identical assignments of error.
(See footnote 1)
Thus, assignments of error
directed at findings of fact all assign error to:
a. The Trial Court's Finding of Fact [No. 'X'],
on the grounds that it is not supported by the
b. The Trial Court's Finding of Fact [No. 'X'],
on the grounds that
it is erroneous as a
matter of law.
c. The Trial Court's Finding of Fact [No. 'X'],
on the grounds that it is an abuse of
Assignments of error directed to conclusions of law use the same
phrasing, adding only that the specific conclusion of law is not
supported by the Findings of Fact. Likewise, assignments of error
directed at decretal paragraphs of the order track the language of
defendant's challenges to conclusions of law, adding only that the
specific decretal paragraphs are not supported by the Conclusions
There is nothing inherently incorrect about categories 'a' and
'c' of defendant's assignments of error. These assignments of
error clearly preserve for appellate review the issues stated
therein _ the trial court's exercise of discretion and the
sufficiency of the evidence to support evidentiary facts found by
the trial court. However, these issues are not raised by defendant
. In his appellate brief, defendant does not argue
the trial court abused its discretion. Nor is defendant's appeal
based on the assertion that evidentiary facts were not proven or
(See footnote 2)
Under N.C. R. App. P. 28, [q]uestions raised byassignments of error in appeals from trial tribunals but not then
presented and discussed in a party's brief, are deemed
abandoned[,] and [a]ssignments 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 (a) and (b)(6). Thus, defendant's assignments of error
to the trial court's exercise of discretion and to the evidentiary
support for the findings of fact are deemed abandoned.
We next consider, in the context of the issues actually
briefed on appeal, the defendant's assignments of error in category
'b', asserting that various rulings by the trial court were
erroneous as a matter of law. Defendant argues on appeal that
the trial court erred by (1) ordering specific performance of the
separation agreement and its amendment, in the absence of a pending
claim for breach of contract; (2) ruling that defendant was
equitably estopped from challenging the validity of the amendment;and (3) denying his pretrial motions for summary judgment. We
conclude that these issues are not preserved for appellate review.
Defendant's assertion that a given finding, conclusion, or
ruling was erroneous as a matter of law completely fails to
issues actually briefed on appeal. These assignments
of error do not refer to specific performance, equitable estoppel,
the existence of genuine issues of material fact, the proper
interpretation of the North Carolina Rules of Civil Procedure, the
requirements for a valid separation agreement, incorporation by an
amendment of an earlier agreement, breach of contract, effect of
voluntary dismissal of a claim on related pending claims and
counterclaims, enforcement of separation agreements, or other
relevant legal issue. Defendant's se
ries of generic assertions
that the trial court's findings and conclusions were erroneous as
a matter of law
essentially amount to no more than an allegation
that the court erred because its ruling was erroneous.
assignment of error is designed to allow counsel to argue anything
and everything they desire in their brief on appeal. 'This
assignment - like a hoopskirt - covers everything and touches
nothing.' Wetchin v. Ocean Side Corp
., 167 N.C. App. 756, 759,
606 S.E.2d 407, 409 (2005) (quoting State v. Kirby
, 276 N.C. 123,
131, 171 S.E.2d 416, 422 (1970)).
We conclude that the issues
defendant briefed on appeal are not preserved for review bydefendant's assignments of error, set out as category 'b' above,
asserting that a given finding, conclusion, or decretal paragraph
was erroneous as a matter of law.
Moreover, under Rule 28 (b)(6), [i]mmediately following each
question shall be a reference to the assignments of error pertinent
to the question
[.] (emphasis added). In the instant case, the
assignments of error referenced by defendant following each
question are not
pertinent to the legal issues presented.
That assignments of error must identify the legal issues to be
briefed is neither a new rule, nor a novel application of the Rules
of Appellate Procedure. Indeed, the North Carolina Supreme Court
has repeatedly held that [prior Rules of Practice in the Supreme
Court of N.C.] . . . require an assignment of error to state
clearly and intelligently what question is intended to be
presented[.] . . . These rules are mandatory, and will be
enforced. Kleinfeldt v. Shoney's, Inc
., 257 N.C. 791, 793, 127
S.E.2d 573, 574 (1962). The office of an assignment of error, as
both the rule and the innumerable cases interpreting it plainly
show, is to state directly, albeit briefly, what legal error is
complained of and why. Duke v. Hill
, 68 N.C. App. 261, 264, 314
S.E.2d 586, 588 (1984).
Defendant's failure to properly assign
error to the questions briefed on appeal violates Rule 10 of the
North Carolina Rules of Appellate Procedure, and subjects hisappeal to dismissal.
See Viar v. N.C. DOT
, 359 N.C. 400, 610
S.E.2d 360 (2005).
Because defendant failed to properly preserve for appellate
the issues presented on appeal, his appeal is
Judges WYNN and CALABRIA concur.
The only exceptions are assignments of error numbers 112 _
116, which assign error to the admission of certain evidence.
In his first argument, that the trial court erred by
ordering specific performance absent a pending claim for breach
of contract, defendant states that finding of fact No. two (2) is
patently incorrect. However, this finding, in which the
trial court construes the allegations of plaintiff's complaint as
establishing a claim for specific performance of the agreement
and its amendment, is more properly termed a conclusion of law.
Defendant basically argues that, under his interpretation of the
language of the pleadings and of the N.C. Rules of Civil
Procedure, the trial court would not have reached the conclusion.However, none of defendant's assignments of error challenge the
trial court's construction of either the Rules of Civil Procedure
or the language of the pleadings. Furthermore, defendant
mentions the validity of this finding to support his contention
that the trial court lacked authority to order specific
performance - an issue not preserved by defendant's assignments
of error. Although defendant also discusses finding of fact No.
eight (8), he argues only that it is inconsistent with Finding
No. two, and not that the finding is not supported by sufficient
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