An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1171


Filed: 16 August 2005

v .                         Wake County
                            No. 02 CVD 6317

    Appeal by defendant from judgment entered 29 January 2004 by Judge James R. Fullwood in Wake County District Court. Heard in the Court of Appeals 13 June 2005.

    Teague, Campbell, Dennis & Gorham, L.L.P., by Carla R. Martin, for plaintiff-appellee.

    Carol Bennett, pro-se, defendant-appellant.


    Carol Bennett (“defendant”) appeals an order of the trial court denying her “Motion to Vacate Verdict and Judgment Order and for New Trial.” Because defendant has committed gross violations of the Appellate Rules of Procedure, we dismiss defendant's appeal.
    The pertinent factual and procedural history is as follows: On 14 March 2002, Neuse River Veterinary Hospital (“plaintiff”) commenced this action by filing a complaint for money owed. Following an award to plaintiff in small claims court, defendant gave notice of appeal. The District Court granted defendant leave to file counterclaims for negligence and breach of contract. The matter was tried before a jury on 23 September 2002. The juryreturned a verdict in favor of plaintiff. Subsequently, the trial court entered an order granting plaintiff's motion for a directed verdict on defendant's counterclaim of negligence. The trial court denied defendant's “Motion to Vacate Verdict and Judgment Order and for New Trial.” Defendant appeals.

    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.
    Judges WYNN and MCCULLOUGH concur.
    Report per Rule 30(e).

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