Appeal by plaintiff from order entered 3 September 2004 by
Judge John O. Craig, III, in Guilford County Superior Court. Heard
in the Court of Appeals 21 April 2005.
Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith, for
plaintiff-appellant.
Smith Moore, L.L.P., by Julie C. Theall, and Patti W. Ramseur,
for defendant-appellee.
LEVINSON, Judge.
Plaintiff (Terri Buchanan) is a former employee of defendant
(City of High Point). Her employment was terminated in 2003, and
she thereafter filed a “petition for writ of certiorari, or
alternatively [a] complaint” against defendant, seeking superior
court review of her termination. On 14 July 2004 defendant filed
a motion for summary judgment, which was granted by the trial court
on 3 September 2004. Plaintiff filed a notice of appeal from the
summary judgment order on 8 September 2004.
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to a judgment as
a matter of law.” N.C.G.S. § 1A-1, Rule 56(c) (2003). “An issue
is 'genuine' if it can be proven by substantial evidence and a fact
is 'material' if it would constitute or irrevocably establish any
material element of a claim or a defense.” Lowe v. Bradford, 305
N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations omitted).
“The trial court must view all evidence in the light most favorable
to the non-movant and draw all reasonable inferences in his favor
in ruling on a motion for summary judgment.” Campbell v. Anderson,
156 N.C. App. 371, 374, 576 S.E.2d 726, 729, disc. review denied,
357 N.C. 457, 585 S.E.2d 385 (2003) (citation omitted). “[T]he
standard of review on appeal from summary judgment is whether there
is any genuine issue of material fact and whether the moving party
is entitled to a judgment as a matter of law.” Bruce-Terminix Co.
v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577
(1998).
Plaintiff's appeal is in significant violation of the Rules of
Appellate Procedure, and we conclude her appeal must be dismissed.
First, plaintiff did not assign error to the summary judgment
order, which removes it from our consideration. On appeal,
plaintiff assigned error only to the following: 1. The Superior Court committed prejudicial and
reversible error by failing to rule that the
High Point personnel ordinance was binding
upon defendant, and it violated its ordinance
by (a) failing to carry out progressive
disciplinary steps before dismissing
plaintiff, and (b) determining without factual
basis that plaintiff had falsified city
records.
2. The Superior Court committed prejudicial and
reversible error by failing to rule that the
disciplinary hearing of plaintiff held by
defendant violated plaintiff's constitutional
rights to representation by counsel,
cross-examination of opposing witnesses, and
presentation of favorable witnesses.
Under N.C.R. App. P. 10(a), “the scope of review on appeal is
confined to a consideration of those assignments of error set out
in the record on appeal[.]” Issues not assigned as error are not
properly before this Court.
See, e.g., Nicholson v. American Safety
Utility Corp., 124 N.C. App. 59, 68, 476 S.E.2d 672, 678 (1996)
(“Because plaintiff did not assign as error the trial court's entry
of summary judgment . . . this issue is not properly before the
Court, see N.C.R. App. P. 10(a), and we do not address it.”).
Plaintiff's assignments of error assert the trial court “failed to
rule” on certain issues in plaintiff's favor. However, doing so
would not have been the trial court's function when confronted with
the motion for summary judgment in the instant case.
Secondly, plaintiff's arguments do not address the legal
issues presented by a trial court's ruling on a summary judgment
motion. Plaintiff failed to mention Rule 56 in her brief, or even
include it in the Table of Authorities. She omits any discussion
of whether there are “genuine issues of material fact.” Asdiscussed above, resolution of this issue is central to proper
review of a summary judgment order, and plaintiff's failure to
address it places on this Court the burden of combing the record
for disputed issues of fact. As discussed in
Shook v. County of
Buncombe, 125 N.C. App. 284, 286, 480 S.E.2d 706, 707 (1997):
Plaintiff's appeal purports to present a
number of interwoven and complicated issues,
amidst a [voluminous] record on appeal[.] . .
. [T]he rules are not merely ritualistic
formalisms, but are essential to our ability
to ascertain the merits of an appeal.
Furthermore, the appellate rules promote
fairness by alerting both the Court and
appellee to the specific errors appellant
ascribes to the court below.
Under N.C.R. App. P. 28(a), issues not presented and argued in
an appellant's brief “are deemed abandoned.” The plaintiff failed
to (1) assign error to the court's entry of summary judgment; (2)
present arguments pertinent to summary judgment; or (3) cite any
authority on the issue of summary judgment. We conclude that the
propriety of the trial court's order for summary judgment is not
properly before us:
We first conclude that the Court of Appeals
erred because the question [addressed] . . .
was not properly presented. . . . [D]efendants
. . . failed to assign error on the grounds
[reviewed by the Court of Appeals]. . . .
[D]efendants argued and assigned error to [a
related issue], . . . [but] never raised the
issue [addressed by the Court of Appeals.] . .
. [T]he Court of Appeals erred in considering
[the issue.]
Department of Transp. v. Rowe, 353 N.C. 671, 674, 549 S.E.2d 203,
207 (2001). “Rules of Appellate Procedure are mandatory and failure to
observe them is grounds for dismissal of the appeal.”
State v.
Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780, 780 (1982).
We
recognize that N.C.R. App. P. 2 authorizes this Court to suspend
the Rules of Appellate Procedure to “prevent manifest injustice to
a party[.]” However, “'Rule 2 relates to the residual power of our
appellate courts to consider,
in exceptional circumstances,
significant issues . . . or to prevent injustice which appears
manifest to the Court and
only in such instances.'”
Wolfe v.
Villines, __ N.C. App. __, __ 610 S.E.2d 754, 761 (2005)(quoting
Steingress v. Steingress 350 N.C. 64, 66, 511 S.E.2d 298, 299-300
(1999))
. Moreover, the North Carolina Supreme Court recently
stated the following about this Court's use of Rule 2:
The majority opinion . . . applied Rule 2 of
the Rules of Appellate Procedure to suspend
the Rules[,] . . . assert[ing] that
plaintiff's Rules violations did not impede
comprehension of the issues on appeal or
frustrate the appellate process. It is not
the role of the appellate courts, however, to
create an appeal for an appellant. . . . [T]he
Rules of Appellate Procedure must be
consistently applied; otherwise, the Rules
become meaningless, and an appellee is left
without notice of the basis upon which an
appellate court might rule.
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360,
361 (2005) (citations omitted).
We conclude plaintiff's appeal must be dismissed.
Dismissed.
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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