NORTH CAROLINA COURT OF APPEALS
Filed: 6 June 2006
THE COUNTY OF DURHAM, and
THE CITY OF DURHAM,
No. 03 CVS 457
EDGAR R. DAYE and wife ELLA M.
DAYE (now both deceased), Owners;
ALL ASSIGNEES, HEIRS AT LAW and
DEVISEES of EDGAR R. DAYE and/or
ELLA M. DAYE together with all
CREDITORS and LIEN HOLDERS
regardless of how or through whom
they claim, and ANY and ALL PERSONS
CLAIMING ANY INTEREST IN THE
ESTATES OF EDGAR R. DAYE and/or
ELLA M. DAYE,
Appeal by defendants from judgment entered 18 March 2005 by
Judge John W. Smith in the Superior Court in Durham County. Heard
in the Court of Appeals 10 April 2006.
Assistant County Attorney Curtis Massey, for plaintiff-
appellee County of Durham.
The Banks Law Firm, by Lena D. Wade, for plaintiff-appellee
City of Durham.
Michaux & Michaux, P.A., by Eric C. Michaux, and Browne,
Flebotte, Wilson & Horn, P.L.L.C., by Daniel R. Flebotte, for
On 27 January 2003, the City of Durham and County of Durham
(plaintiffs) initiated tax foreclosure proceedings in the
district court against Edgar R. and Ella M. Daye (the Dayes) asrecord owners of real property at 3603 Dearborn Drive in Durham.
Edgar and Ella Daye, who had died intestate in 1999 and 1997,
respectively, did not answer and default judgment was entered
against them on 7 April 2003. Notice of sale was issued and the
property was sold to high bidder Chidinma Nweke on 20 June 2003.
On 22 April 2004, W.E. Daye, brother of Edgar Daye, filed a motion
in the cause to set aside the sale of the property on behalf of
himself and all other heirs. On 5 August 2004, W.E. Daye became
administrator of the Dayes' estates. By supplemental motion 27
August 2004, W.E. Daye and the other defendants asked that they be
declared owners of the property and be awarded damages and attorney
fees. Plaintiff Durham County moved to dismiss and for sanctions.
After Chidinma Nweke was joined as a necessary party, the matter
was removed to superior court.
Following a hearing, on 10 December 2004, the court set aside
the sale of the property to Chidinma Nweke and joined all of the
heirs as owners. On 18 March 2005, following a hearing, the court
dismissed the claims against plaintiff Durham County on grounds of
sovereign immunity, and denied Durham County's motion for sanctions
by separate order. Defendants appeal from the dismissal of their
claims for damages. Plaintiffs cross-assign error to the trial
court's denial of the motion to dismiss on four additional grounds.
On 5 August and 22 November 2005, plaintiffs moved this Court to
dismiss defendants' appeal. On 22 November 2005, plaintiffs also
moved to strike a section of defendants' response to its firstmotion to dismiss and a transcript of the proceedings of 26 July
2005. For the reasons discussed below, we dismiss this appeal.
In 2003, when the plaintiffs initiated the tax foreclosure,
the Dayes were the owners of record of the property. Ella M. Daye
died on 28 January 1997, and was survived for two years by her
husband Edgar R. Daye who resided at a retirement home for the last
years of his life. When there was no response to the complaint and
civil summons which were mailed return receipt requested to the
Dayes' last known address, plaintiffs' counsel proceeded to follow
methods of service detailed in N.C. Gen. Stat. § 105-374.
Plaintiff published a notice of service of process in the local
newspaper once a week for three weeks. However, W.E. Daye received
neither actual notice of the foreclosure action nor plaintiffs'
complaint and civil summons.
We note that defendants' brief contains several technical
violations of the Rule of Appellate Procedure, including the
failure to bring forward assignments of error in their brief,
attachment of improper materials to their brief, and failure to
include required materials in the appendix to their brief. See
N.C.R. App. P. 28(b)(6), 28(d), and 28(d)(1)c. More significantly,
Rule of Appellate Procedure 28(b)(4) requires the appellant to
include in its brief to this Court a statement of grounds for
appellate review. When an appeal is interlocutory, the statement
must contain sufficient facts and argument to support appellate
review on the ground that the challenged order affects a
substantial right. N.C.R. App. P. 28(b)(4). Here, only plaintiff Durham County moved to dismiss
defendants' request for damages; plaintiff City of Durham made no
motions. Thus, only the claims for damages against Durham County
were dismissed in the trial court's 18 March 2005 order; as the
remaining claims are still pending, this appeal is interlocutory.
Cunningham v. Brown
, 51 N.C. App. 264, 267, 276 S.E.2d 718, 722
(1981). The defendants' brief contains no statement of the grounds
for appellate review, no Rule 54 certification by the trial judge,
and no explanation of why the Court should review this
interlocutory order. It is not the duty of this Court to
construct arguments for or find support for appellant's right to
appeal from an interlocutory order; instead, the appellant has the
burden of showing this Court that the order deprives the appellant
of a substantial right which would be jeopardized absent a review
prior to a final determination on the merits. Jeffreys v. Raleigh
Oaks Joint Venture
, 115 N.C. App. 377, 380, 444 S.E.2d 252, 254
(1994). The Rules of Appellate Procedure are mandatory and . . .
failure to follow these rules will subject an appeal to dismissal.
Steingress v. Steingress
, 350 N.C. 64, 65, 511 S.E.2d 298, 299
(1999). Because we are dismissing this appeal, we dismiss
defendant's first motion to dismiss and motion to strike, and
plaintiffs' motion to amend the record as moot.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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