An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1398
                                          &nb sp; 
Filed: 5 July 2005


v .                         Guilford County
                            No. 03 CVS 8693

    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.

Standard of Review
    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.
    Chief Judge MARTIN and Judge TYSON concur.
    Report per Rule 30(e).

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