ROCCO M. YALLUM &
SANDRA F. YALLUM,
Plaintiffs,
v. Gaston County
No. 03 CVS 1955
DENNIS R. HAMMERLE,
BARBARA A. HAMMERLE,
ALAN G. CLONINGER,
WARREN H. MOSS and
MOSS REALTY,
Defendants.
Rocco M. Yallum and Sandra F. Yallum, plaintiff-appellants,
pro se.
R. Locke Bell for defendant-appellees Dennis R. Hammerle and
Barbara A. Hammerle.
Jim R. Funderburk for defendant-appellee Alan G. Cloninger.
Gray, Layton, Kersh, Solomon, Sigmon, Furr & Smith, P.A., by
David W. Smith, III, for defendant-appellees Warren H. Moss
and Moss Realty.
LEVINSON, Judge.
On 6 December 2004, Rocco M. Yallum and Sandra F. Yallum
(plaintiffs) filed their pro se proposed settling record on
appeal with this Court. They assert in the document that they
served the proposed record on appeal upon defendants on 28 October2004 and that defendants failed to respond to it. As a result of
defendants' failure to respond, plaintiffs state that the record on
appeal was deemed settled pursuant to N.C.R. App. P. 11(b). Our
review of the contents of the record on appeal reveals that it
lacks the necessary documents to confer jurisdiction upon this
Court to review either the 17 November 2003 order or the 24 March
2004 summary judgment order.
As the appellants, plaintiffs had the duty and responsibility
of seeing that the record on appeal filed with this Court was
complete. See Hill v. Hill, 13 N.C. App. 641, 642, 186 S.E.2d 665,
666 (1972). In appeals from the trial division . . . , review is
solely upon the record on appeal and the verbatim transcript of
proceedings, if one is designated. N.C.R. App. P. 9(a). Rule 9
of the North Carolina Rules of Appellate Procedure lists the
function and composition of the record on appeal, and it states
that [t]he record on appeal in civil actions . . . shall contain
. . . a copy of the judgment, order, or other determination from
which appeal is taken; . . . [and] a copy of the notice of appeal
. . . [.] N.C.R. App. P. 9 (a)(1)(h) and (i) .
Several documents which are required by Rule 9 are not
contained in plaintiffs' record on appeal, including their notices
of appeal, the order entered by Judge F. Donald Bridges, and the
summary judgment order entered by Judge Timothy L. Patti. See id.
Due to plaintiffs' failure to include their notices of appeal in
the record on appeal, this Court is without jurisdiction to review
the trial court's rulings in this matter. See CrowellConstructors, Inc. v. State ex rel. Cobey, 328 N.C. 563, 563-64,
402 S.E.2d 407, 408 (1991). Assuming arguendo that this Court did
have jurisdiction to review the trial court's rulings, t
he appeal
would still be subject to dismissal b
ecause neither of the trial
court's orders are contained
in the record on appeal. See Abels v.
Renfro Corp., 126 N.C. App. 800, 804, 486 S.E.2d 735, 738 (1997).
Each of the defendants has filed a motion to dismiss
plaintiffs' appeal on the basis of their failure to include
necessary documents in the record on appeal. For the reasons
stated in the above discussion of the inadequate record on appeal,
defendants' motions to dismiss the appeal are allowed. Because
defendants' motions to dismiss the appeal were meritorious,
plaintiffs' motion to sanction defendants for filing frivolous
motions is denied.
Appeal dismissed.
Judges MCGEE and HUDSON concur.
Report per Rule 30(e).
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