An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA05-1034


Filed: 4 April 2006


v .                         Rutherford County
                            No. 04 CVS 1533
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
Respondeat Superior, in individual
and professional capacity, LOUIS C.

    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, Ph.D.
    Robert W. Wolf, for defendants-appellees Cheryl Justice, Charles Justice, Shelly Conner, Myra T. Conner, and Janice Conner.

    No brief filed for defendants-appellees Robert K. Martelle and John/Jane Does.

    TYSON, Judge.

    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.

I. Background
    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 holidays.
    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 question. Id.
        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 provides:
        [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 abandoned.

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.
III. Conclusion
    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. Steingress, 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 dismissed.
    Judges MCCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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