v. Mecklenburg County
No. 04 CVS 17852
WISHART, NORRIS, HENNINGER & PITTMAN, P.A., by William A.
Navarro and Steven B. Ockerman, for plaintiff-appellant.
JAMES, McELROY & DIEHL, P.A., by William K. Diehl, Jr., Preston O. Odom, III, and Irene P. King, for defendant- appellee.
Elaine Anderson (plaintiff) appeals the trial court's 24 February 2005 order (1) striking portions of her affidavit in opposition to defendant's motion to dismiss and (2) dismissing her complaint with prejudice for lack of personal jurisdiction. Defendant has filed a motion to dismiss the appeal contending the assignments of error contained in the record on appeal fail to comply with the requirements of the North Carolina Rules of Appellate Procedure (the Rules).
The assignments of error set out in the record on appeal are categorized as follows: 1. Did the Court err in granting the Defendant's Motion to Strike?
. . .
2. Did the Court err in granting the
Defendant's Motion to Dismiss?
. . .
3. If the Court did not err in granting the
Defendant's Motion to Dismiss, did the Court
err in ordering the case dismissed with
North Carolina Rule of Appellate Procedure 10(c)(1)(Rule
10(c)(1)) mandates that an assignment of error shall, so far as
practicable, be confined to a single issue of law; and shall state
plainly, concisely and without argumentation the legal basis upon
which error is assigned. N.C.R. App. P. 10(c)(1) (2005). The
foregoing assignments of error are neither confined to a single
issue of law, id., nor state the legal basis upon which error is
assigned, id. Accordingly, the assignments of error violate Rule
10(c)(1) and thus fail to preserve any issue for appellate review,
subjecting the appeal to dismissal. See May v. Down East Homes of
Beulaville, Inc., ___ N.C. App. ___, ___, 623 S.E.2d 345, 346
(2006), and Walker v. Walker, ___ N.C.App. ___, ___, 624 S.E.2d
639, 642 (2005).
Our Supreme Court recently reiterated that [t]he Rules of North Carolina Appellate Procedure are mandatory, Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610 S.E.2d 360, 360 (2005), and must be consistently applied, id. at 402, 610 S.E.2d at 361, or become meaningless, id. In Viar, the use by this Court ofN.C.R. App. P. 2 to permit consideration of appeals containing Rule violations was specifically disfavored. See id.
Following Viar as we are required to do, see Dunn v. Pate, 334 N.C. 115, 118, 431 S.E.2d 178, 180 (1993)(Court of Appeals is bound by decisions of the North Carolina Supreme Court), as well as the multiple subsequent decisions of this Court adhering thereto, see In The Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by the precedent, unless it has been overturned by a higher court.), we conclude after careful consideration that the instant appeal must be dismissed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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