Appeal by defendant from order entered 28 December 2005 by
Judge Paul G. Gessner in Wake County District Court. Heard in the
Court of Appeals 21 September 2006.
Law Office of Sally Scherer, by Sally H. Scherer, for
Roy Wilson Day, pro se, defendant-appellant.
Defendant Roy Wilson Day appeals an order of the district
court awarding defendant's former spouse, plaintiff Patricia M.
Day, judgment on the pleadings with respect to plaintiff's action
for the specific performance of a provision in a settlement
agreement entered into by the parties after their divorce. Because
of defendant's failure to properly settle the record on appeal, in
violation of N.C.R. App. P. 11(b), and his failure to take any
steps to remedy this violation once it was called to his attention,
we grant plaintiff's motion to dismiss his appeal.
Plaintiff and defendant were married in 1965 and divorced in
1989. In 1995, the parties entered into a "Settlement and Release
Agreement" relating to the dissolution of their marriage.
Paragraph 10 of this agreement provides that:
[Defendant] shall continue to maintain
unencumbered insurance coverage on his life in
the amount of Two Hundred and Fifty Thousand
Dollars ($250,000.00), naming [plaintiff] as
beneficiary, and shall execute any and all
documentation necessary to enable [plaintiff]
to independently verify the coverage and the
identity of the beneficiary, and to confirm
that the coverage is unencumbered.
It is undisputed that defendant has not maintained the insurance
coverage required by this provision.
On 17 June 2005, plaintiff filed a verified complaint in Wake
County District Court seeking specific performance of the insurance
provision. Defendant filed an unverified answer admitting that he
had failed to maintain the required insurance, but contending that
he and plaintiff had mutually agreed to forego the life insurance
requirement of the Settlement and Release Agreement. Defendant
alleged that, as a result, plaintiff's claims were barred by
various affirmative defenses, including condonation, equitable
estoppel, and laches.
In October 2005, plaintiff filed a motion for judgment on the
pleadings. The district court granted plaintiff's motion on 28
December 2005 and ordered defendant to "maintain unencumbered
insurance coverage on his life" in the amount of $250,000.00 and to
execute any documentation necessary to permit plaintiff to ensure
the coverage complied with the Settlement and Release Agreement. Defendant timely appealed to this Court. Under Rule 11,
defendant was then required, within 35 days after filing his notice
of appeal, either (1) to settle a proposed record by agreement as
set forth in N.C.R. App. P. 11(a), or (2) to "serve upon all other
parties a proposed record on appeal constituted in accordance with
the provisions of Rule 9" under N.C.R. App. P. 11(b). Since there
was no settlement by agreement, the question is whether defendant
complied with Rule 11(b).
In response to plaintiff's motion to dismiss this appeal,
defendant has acknowledged that his "proposed record on appeal," as
served on plaintiff, amounted solely to a letter to plaintiff's
counsel that stated in its entirety:
Pursuant to North Carolina Rule of
Appellate Procedure 11, I am serving upon you
my proposed record on appeal:
1. Complaint filed June 17, 2005.
2. Answer filed August 29, 2005.
3. Amended Answer filed September
4. Plaintiff's Motion for Judgment
on the Pleadings with
amendments filed October 13,
5. Final Order signed by Judge
Paul G. Gessner entered
December 28, 2005.
6. Statement that Jurisdiction
over the Defendant was obtained
by personal service of the
complaint at Defendant's
residence in Florida.
Please advise whether you approve the
proposed record or if you have any amendments
No documents were attached to this letter. While defendant contends that this one-page letter complied
with Rule 11(b), that Rule also requires that the proposed record
on appeal be "constituted in accordance with the provisions of Rule
9." Under Rule 9, records on appeal from civil proceedings must
contain a variety of items, including, among other things, an
index, copies of the pleadings, and "so much of the evidence" and
"other papers filed . . . in the trial court [as is] necessary to
an understanding of all errors assigned . . . ." N.C.R. App. P.
9(a)(1). Not by any stretch of the imagination can defendant's
one-page letter _ amounting to little more than an index of the
contents of a proposed record _ be viewed as complying with the
requirements of Rules 9 and 11 of the Rules of Appellate Procedure.
Defendant argues that the record on appeal was nevertheless
settled because plaintiff never objected to his list and that this
"failure to object within the time allowed operates as a waiver of
objection." It is true that if an appellee does not serve
"objections, amendments, or proposed alternative records on appeal,
appellant's proposed record on appeal thereupon constitutes the
record on appeal." N.C.R. App. P. 11(b). The plain language of
this rule, however, places a duty on an appellee to object only
after the appellant serves a proposed record "constituted in
accordance with the provisions of Rule 9." Since defendant never
served plaintiff with a proposed record on appeal, there was
nothing to which plaintiff could object.
Even apart from defendant's failure to comply with Rule 9, his
argument does not address the fact that the letter he sent toplaintiff's counsel was not in fact his proposed record on appeal.
The record on appeal filed with this Court includes not only the
documents itemized in the letter, but also a statement of the
organization of the trial tribunal, the notice of appeal, a
statement regarding defendant's contentions as to the settlement of
the record, defendant's assignments of error, and a specification
of the parties to the appeal. The document filed with this Court
as the settled record on appeal was never in fact served on
plaintiff as a proposed record on appeal. Further, when this
omission was called to defendant's attention, he did not seek an
extension of his time to serve the proposed record on appeal or
take any other action to correct his error.
Our Court has repeatedly held that the failure to serve a
proposed record on appeal in accordance with Rule 11 is a
substantial violation of the rules requiring dismissal of the
appeal. See, e.g.
, Higgins v. Town of China Grove
, 102 N.C. App.
570, 571-72, 402 S.E.2d 885, 886 (1991) (dismissing appeal when the
appellant filed record on appeal with Court of Appeals without
first serving it as a proposed record on appeal on the appellee);
Woods v. Shelton
, 93 N.C. App. 649, 652, 379 S.E.2d 45, 47 (1989)
(dismissing appeal when the appellant did not tender a proposed
record on appeal to the appellee within the required time limit);
McLeod v. Faust
, 92 N.C. App. 370, 371, 374 S.E.2d 417, 417 (1988)
(dismissing appeal when the appellant filed a record on appeal with
the Court of Appeals without giving the appellee an opportunity to
object to it). Failure to properly serve a proposed record on appeal is not
a mere technical violation. Indeed, a review of the briefs filed
in this action indicates that a critical issue for resolution on
appeal is whether the trial court considered only the pleadings, as
defendant contends, or whether the court also took judicial notice
of the court file in the parties' prior judicial proceedings, as
plaintiff contends. Plaintiff has argued that the record on
appeal, as filed, omits documents considered by the trial judge and
supporting his order, while defendant urges that the documents
relied upon by plaintiff are outside the record. Because of
defendant's failure to properly settle the record on appeal, we
cannot know whether the disputed judicial notice occurred or not.
As defendant failed to properly settle the record, and has made no
remedial efforts to address this issue, we dismiss this appeal.
Judges STEELMAN and STEPHENS concur.
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