STEVEN W. HUDSON,
Plaintiff-Appellant,
v. Alamance County
No. 03 CVS 1925
BILLY W. OVERMAN,
Defendant-Appellee.
Peebles & Schramm, P.C., by Todd M. Peebles and Richard
Jackson, for plaintiff-appellant.
Teague, Rotenstreich & Stanaland, LLP, by Paul A. Daniels, for
defendant-appellee.
McGEE, Judge.
Plaintiff filed a complaint for personal injury on 4 September
2003. Defendant filed an answer and served plaintiff with
interrogatories and a request for production of documents on 29
September 2003. Defendant filed a motion to compel plaintiff to
respond to the interrogatories and request for production of
documents on 17 December 2003. The parties entered into a consent
order on 22 January 2004, in which plaintiff agreed to provide full
answers to the interrogatories and request for production of
documents by 11 February 2004.
Contending plaintiff had not complied with the consent order,
defendant filed a motion dated 4 March 2004 for the imposition ofsanctions, including dismissal of plaintiff's complaint. Defendant
noticed the motion for sanctions for hearing on 22 March 2004. By
letter dated 5 March 2004, plaintiff provided some of the requested
documents. Judge J.B. Allen, Jr. heard the motion for sanctions
and filed an order allowing the motion and dismissing plaintiff's
complaint with prejudice on 29 March 2004. On the same date,
plaintiff filed a motion to reconsider the order granting
sanctions. Judge Kenneth Titus heard the motion and treated it as
a motion to set aside a judgment pursuant to Rule 60. He entered
an order denying the motion on 6 April 2004.
Plaintiff filed notice of appeal on 5 May 2004. The notice of
appeal reads: "COMES THE PLAINTIFF, by and through counsel, and
respectfully gives Notice of his Appeal to the North Carolina Court
of Appeals from the Order of the Hon. Kenneth Titus, entered on
April 5, [sic] 2004."
Plaintiff contends that the trial court erred in dismissing
his complaint with prejudice for plaintiff's failure to comply with
the trial court's discovery order. Defendant argues that
plaintiff's appeal should be dismissed on the grounds that: (1)
plaintiff's argument does not refer to the assignment of error or
to the page on which the assignment of error appears in the record
on appeal, in violation of N.C. R. App. P. 28(b)(6); and (2) the
notice of appeal does not include the 29 March 2004 order
dismissing the complaint but identifies only the 6 April 2004 order
denying the motion to reconsider as the order from which appeal is
taken. We first address defendant's contentions that the appeal
should be dismissed. Our jurisdiction is limited to review of an
order or orders specifically designated in the notice of appeal.
Chee v. Estes, 117 N.C. App. 450, 452, 451 S.E.2d 349, 350 (1994).
A notice of appeal from an order denying a motion for new trial, or
to set aside a judgment or order, which does not also specifically
include notice of appeal of the underlying judgment or order, does
not present the underlying judgment or order for our review.
Atchley Grading Co. v. West Cabarrus Church, 148 N.C. App. 211,
212, 557 S.E.2d 188, 188-89 (2001). Furthermore, when a party
appeals from an order denying a motion for a new trial or to set
aside a judgment, but fails to present argument or cite authority
pertaining to the order denying the Rule 59 or Rule 60 motion, the
issue is deemed abandoned. Id. at 212-13, 557 S.E.2d at 189.
In the case before us, the notice of appeal fails to include
Judge Allen's 29 March 2004 order dismissing plaintiff's complaint
as an order from which appeal is taken. Plaintiff presents no
argument nor cites any authority pertaining to the 6 April 2004
order entered by Judge Titus, from which plaintiff did give notice
of appeal.
Plaintiff's appeal is therefore dismissed.
Dismissed.
Judges HUDSON and LEVINSON concur.
Report per Rule 30(e).
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