An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 4 April 2006
TIMOTHY DANIEL HEAD,
No. 04 CVS 1533
NORTH CAROLINA STATE, RUTHERFORD
COUNTY, PENNY DAVIS, Director
in Individual and Professional
Capacity, LYNN HOPPES, Supervisor
D.S.S., in individual and
professional capacity, LORIE
HORNE, Agent D.S.S., in individual
and professional capacity, TOWN OF
FOREST CITY, CHIEF CHAPMAN,
Respondeat Superior, in individual
and professional capacity, LOUIS C.
GADOL, PH.D., CHERLY JUSTICE,
CHARLES JUSTICE, SHELLY CONNER,
MYRA T. CONNER, JANICE CONNER,
ROBERT K. MARTELLE, JOHN/JANE
Appeal by plaintiff from orders entered 17 February 2005 by
Judge Zoro J. Guice, Jr., in Rutherford County Superior Court.
Heard in the Court of Appeals 15 March 2006.
Timothy Daniel Head, plaintiff-appellant, pro se.
Attorney General Roy Cooper, by Assistant Attorney General R.
Kirk Randleman, for the State.
Womble Carlyle Sandridge & Rice, PLLC, by Scott D. MacLatchie,
for defendants-appellees Rutherford County, Penny Davis, Lynn
Hoppes, and Lorie Horne.
William L. Hill, for defendants-appellees Town of Forest City
and Chief Chapman.
Teague Campbell Dennis & Gorham, LLP, by George W. Dennis III
and Brad G. Inman, for defendant-appellee Louis C. Gadol,
Robert W. Wolf, for defendants-appellees Cheryl Justice,
Charles Justice, Shelly Conner, Myra T. Conner, and Janice
No brief filed for defendants-appellees Robert K. Martelle and
Timothy Daniel Head (plaintiff) appeals from orders entered
granting defendants' motions to dismiss. Plaintiff's multiple
violations of the North Carolina Rules of Appellate Procedure
warrant dismissal of his appeal. We dismiss.
Plaintiff contends his exwife, Shelly Conner Head (Shelly)
and her family, along with the Rutherford County Department of
Social Services (DSS) conspired to thwart a court order signed
on 12 December 2001 denying him his parental rights.
On 28 November 2001, plaintiff filed suit seeking permanent
sole custody of the couple's two minor children. On 11 December
2001, Shelly obtained a domestic violence protective order pursuant
to N.C. Gen. Stat. § 50B-3.
Plaintiff contends that after he and Shelly were in court for
the adjudication of a 50B motion on 12 December 2001, Shelly went
to Rutherford County DSS and reported plaintiff was abusive and
sexually assaulted the children and had done like things to herself
and other family members. DSS commenced an investigation and
required plaintiff to sign a plan of protection, which required the
presence of another adult family member while he visited with his
children. Plaintiff argues the investigation was not thoroughbecause DSS spoke only to Shelly's relatives, but not his. DSS
filed an abuse and neglect petition, which was heard two months
later. DSS dismissed the petition and told plaintiff he needed to
sign a new plan of protection before he could visit with his
children. This plan allowed plaintiff visitation with his children
under professional supervision. Plaintiff refused to sign the
protection plan. Shelly signed the plan and it was delivered to
the children's school. School officials were told to call the
police if plaintiff tried to contact his children.
On 19 May 2003, the trial court issued an order awarding
custody of the children to Shelly, subject to supervised
visitations by plaintiff three times a week and on certain
In 2004, this Court affirmed the order, which granted Shelly
custody of the children and allowed plaintiff supervised
visitation. Head v. Head, 167 N.C. App. 370, 605 S.E.2d 267
(2004). Following this Court's decision in Head, plaintiff sued
the State, County, DSS director and two DSS employees, the Town of
Forest City and its Chief of Police, a therapist, Shelly and
several of her relatives, and John/Jane Does for a broad range of
claims including: breach of contract, tortuous interference with
a contract, slander, violation of a statute, negligence, due
process and equal protection violations, civil conspiracy,
intentional distress, negligent infliction of emotional distress,
and malicious prosecution. The trial court dismissed all of plaintiff's claims against
all defendants. Plaintiff appeals.
II. Appellate Rules Violations
Our Supreme Court has stated:
It is not the role of the appellate courts . . .
to create an appeal for an appellant. As this case
illustrates, the 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. See Bradshaw v. Stansberry, 164 N.C.
356, 79 S.E. 302 (1913).
Viar v. North Carolina Dept. of Transp., 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005).
In Viar, our Supreme Court dismissed the plaintiff's appeal
due to multiple appellate rules violations. Id. The plaintiff in
Viar violated N.C.R. App. P. 10(c)(1) and 28(b). Id.
Regarding N.C.R. App. P. 10(c), the plaintiff in Viar failed
to number separately the assignments of error at the conclusion of
the record on appeal in short form without argument. Id. The
plaintiff in Viar also violated N.C.R. App. P. 28(b), which
requires, a reference to the assignments of error pertinent to the
question, identified by their numbers and by the pages at which
they appear in the printed record on appeal to follow each
The Rules of Appellate Procedure are
mandatory; failure to comply with these rules
subjects an appeal to dismissal. Furthermore,
these rules apply to everyone -- whether
acting pro se or being represented by all of
the five largest law firms in the state.
Because plaintiff violated many of the
appellate rules, his appeal must be dismissed,
notwithstanding his pro se status.
Bledsoe v. County of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d
316, 317 (1999) (emphasis supplied).
Here, plaintiff violated: (1) N.C.R. App. P. 7(a)(1) (2005),
which requires an appellant to serve a copy of the written
documentation of the transcript arrangement upon all other parties.
Plaintiff failed to serve this documentation on all defendants; (2)
N.C.R. App. P. 10(c)(1) (2005), which provides, [a]n assignment of
error is sufficient if it directs the attention of the appellate
court to the particular error about which the question is made,
with clear and specific record or transcript references.
Plaintiff failed to provide page numbers to the record under the
assignments of error; (3) N.C.R. App. P. 28(b)(5) (2005), which
provides, a complete statement of the facts should be a non-
argumentative summary of all material facts underlying the matter
in controversy which are necessary to understand all questions
presented for review. Plaintiff failed to provide facts necessary
to understand the appeal and presented the facts in an
argumentative fashion; (4) N.C.R. App. P. 28(b)(6) (2005), which
[e]ach question shall be separately stated.
Immediately following each question shall be a
reference to the assignments of error
pertinent to the question, identified by their
numbers and by pages at which they appear in
the printed record on appeal. Assignments of
error not set out in the appellant's brief, or
in support of which no reason or argument is
stated or authority cited, will be taken as
Plaintiff failed to provide references to the assignments of error
in his brief; and (5) N.C.R. App. P. 26(g)(2) (2005), whichprovides, briefs that exceed ten pages in length, shall be
preceded by a subject index of the matter contained therein, with
page references, and a table of authorities, i.e. cases
(alphabetically arranged), constitutional provisions, statutes, and
text books cited with references to the pages where they are
cited. Plaintiff arranged the index by page number and failed to
list numerous statutes cited within his brief.
Notwithstanding his pro se
status, plaintiff's appeal must be
dismissed for his multiple appellate rules violations. The North
Carolina Rules of Appellate Procedure are mandatory and 'failure to
follow these rules will subject an appeal to dismissal.' Viar
359 N.C. at 402, 610 S.E.2d at 361 (quoting Steingress v
, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)).
The sanction for plaintiff's multiple rule violations is
dismissal of his appeal. We do not reach the merits of plaintiff's
assignments of error. Id
. (It is not the role of the appellate
courts . . . to create an appeal for an appellant.). Consistent
with our Supreme Court's mandate in Viar
, plaintiff's appeal is
Judges MCCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
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