An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1163


Filed: 5 July 2005


     v.                         Alamance County
                                No. 03 CVS 1925

    Appeal by plaintiff from order entered 6 April 2004 by Judge Kenneth Titus in Superior Court, Alamance County. Heard in the Court of Appeals 20 June 2005.

    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.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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