Defendant presents the following issues on appeal: (I)
whether the trial court erred in instructing the jury; and (II)
whether the trial court erred by granting plaintiff's motions in
limine. The dispositive issue, however, is whether defendant's
appeal should be dismissed for gross violations of the Rules of
Appellate Procedure.
The Rules of Appellate Procedure were enacted to “govern
procedure in all appeals from the courts of the trial division to
the courts of the appellate division.” N.C. R. App. P. 1. “To
obtain review of lower court decisions, appellants must adhere to
certain mandatory procedural requirements.”
Duke University v.
Bishop, 131 N.C. App. 545, 546, 507 S.E.2d 904, 905 (1998). “[E]ven
pro se appellants must adhere strictly to the Rules of Appellate
Procedure . . . or risk sanctions.”
Strauss v. Hunt, 140 N.C. App
345, 348-49, 536 S.E.2d 636, 639 (2000) (citing N.C. R. App. P.
25(b)). “[T]he Rules of Appellate Procedure[] are mandatory
and . . . failure to follow these rules will subject an appeal to
dismissal.”
Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d
298, 299 (1999). In the instant case, defendant violated Rule 28(b)(5), which
requires the appellant's brief to contain
[a] full and complete statement of the facts.
This should be a non-argumentative summary of
all material facts underlying the matter in
controversy which are necessary to understand
all questions presented for review, supported
by references to pages in the transcript of
proceedings, the record on appeal, or
exhibits, as the case may be.
N.C. R. App. P. 28(b)(5). Defendant presented two statements of
fact in her brief. Defendant admits the first statement of facts
is a summary narration of the testimony. The summary lacks any
reference to pages in the transcript or record on appeal. While
defendant submitted a transcript of the trial court's instructions
to the jury, defendant did not submit a transcript of any other
portion of the trial proceeding. There is no narration of facts in
the record on appeal. The second statement of facts in defendant's
brief is very argumentative in violation of Rule 28(b)(5).
The lack of a transcript of testimony or narration of facts in
the record on appeal is a violation of Rules 9(a)(1)e and 9(c)(1)
of the Rules of Appellate Procedure. Rule 9(a)(1)e requires the
appellant to include in the record on appeal “so much of the
evidence, set out in the form provided in Rule 9(c)(1), as is
necessary for an understanding of all errors assigned.” N.C. R.
App. P. 9(a)(1)e. Rule 9(c)(1) provides:
Where error is assigned with respect to the
admission or exclusion of evidence, the
question and answer form shall be utilized in
setting out the pertinent questions and
answers. Other testimonial evidence required
to be included in the record on appeal by Rule
9(a) shall be set out in narrative form exceptwhere such form might not fairly reflect the
true sense of the evidence received, in which
case it may be set out in question and answer
form.
N.C. R. App. P. 9(c)(1). Instead of narrating the testimony, the
appellant may designate a verbatim transcript of the evidence in
the trial court in the record on appeal. N.C. R. App. P. 9(c)(2).
In this appeal, defendant argues the trial court erred in granting
plaintiff's motions
in limine. “For a party to preserve for
appellate review the exclusion of evidence, the significance of the
excluded evidence must be made to appear in the record and a
specific offer of proof is required . . . .”
State v. Love, 131
N.C. App. 350, 357, 507 S.E.2d 577, 583 (1998)(quoting
State v.
Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)). The lack of
a transcript of the proffered testimony, if indeed it was
proffered, precludes this Court's analysis of the merits of
defendant's claim.
Defendant also violated Rule 10(b)(2) of the North Carolina
Rules of Appellate Procedure which provides that “a party may not
assign as error any portion of the jury charge or omission
therefrom unless he objects thereto before the jury retires to
consider its verdict, stating distinctly that to which he objects
and the grounds of his objection.” N.C. R. App. P. 10(b)(2).
“Rule 10(b)(2) of our Rules of Appellate Procedure requiring
objection to the charge before the jury retires is mandatory and
not merely directory.”
State v. Fennell, 307 N.C. 258, 263, 297
S.E.2d 393, 396 (1982). Rule 10(b)(2) was “obviously designed toprevent unnecessary new trials caused by errors in instructions
that the court could have corrected if brought to its attention at
the proper time.”
Wall v. Stout, 310 N.C. 184, 188-89, 311 S.E.2d
571, 574 (1984). In the instant case, defendant raises four issues
related to the trial court's instructions to the jury; however, a
review of the transcript of the trial court's charge to the jury
indicates defendant made only one objection to the jury
instructions. “An appellate court will not review matters not
properly before it."
Bustle v. Rice, 116 N.C. App. 658, 659, 449
S.E.2d 10, 11 (1994).
“Our rules are mandatory, and in fairness to all who come
before this Court, they must be enforced uniformly.”
Shook v.
County of Buncombe, 125 N.C. App. 284, 287, 480 S.E.2d 706, 708
(1997). Because of defendant's gross violations of the Rules of
Appellate Procedure, defendant's appeal is dismissed. We decline
to impose sanctions beyond dismissal of the appeal.
Dismissed.
Judges WYNN and MCCULLOUGH concur.
Report per Rule 30(e).
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