IN RE THE ADOPTION OF LMJS,
A minor child.
Wake County
No. 04 SP 2345
Law Offices of Paul A. Suhr, P.L.L.C., by Amie Sivon and Paul
A. Suhr, for respondent-appellant.
Womble Carlye Sandridge & Rice, by Burley B. Mitchell, Jr. and
Robert E. Fields, III, for petitioner-appellees.
ELMORE, Judge.
This appeal arises from a district court's order of summary
judgment that respondent's consent is not necessary to the adoption
of LMJS by petitioners. Respondent is the putative biological
father of LMJS. He claims that LMJS's biological mother's willful
misrepresentations that he was not the child's father have kept him
from otherwise showing support prior to the filing of the petition,
and that the district court erred in determining he had knowledge
of paternity yet failed to legitimate his parental rights.
Foremost, we must discuss several issues of appellate
procedure that limit the scope of our review. Respondent's notice
of appeal in open court, and again in a written notice of appeal,
references the order of the district court mandating that hisconsent to the adoption is unnecessary. But respondent assigns
error to and argues in his brief that the district court's denial
of his motion for continuance prior to the hearing was an abuse of
discretion. Notably though, the district court denied respondent's
motion by a separate written order entered 28 January 2005.
Respondent's oral and written notice of appeal do not include or
reference the order denying the motion to continue. As such, that
order and decision of the district court is beyond the scope of our
appellate review. See N.C.R. App. P. 3(d) (“The notice of appeal
required to be filed and served . . . shall designate the judgment
or order from which appeal is taken. . . .”); Sillery v. Sillery,
168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005) (Rule 3 of the
North Carolina Rules of Appellate Procedure is jurisdictional;
noncompliance is subject to dismissal); see also Von Ramm v. Von
Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (notice of
appeal from denial of a motion to set aside a judgment which did
not also specifically appeal the underlying judgment does not
properly present the underlying judgment for review).
In addition to the assignment of error dealing with the
district court's denial of his motion to continue, respondent
brings forth three other assignments of error. One of these,
assigning error to the court's denial of respondent's motion for
the appointment of a guardian ad litem, was not discussed or argued
in respondent's brief. Therefore, pursuant to appellate Rule
28(b)(6), that assignment of error is abandoned. N.C.R. App. P.28(b)(6) (“Assignments of error not set out in the appellant's
brief . . . will be taken as abandoned.”).
Respondent's remaining two assignments of error are more than
adequate to direct this Court's attention to the potential legal
errors complained of; however, one assignment of error references
no record or transcript pages. See N.C.R. App. P. 10(c) (“An
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.”). Moreover, neither assignment of error is referenced
in the argument section of respondent's brief “[i]mmediately
following each question . . . identified by their numbers and by
the pages at which they appear in the printed record on appeal,” as
required by Rule 28(b)(6). N.C.R. App. P. 28(b)(6). These errors,
although perhaps minor given the ability of this Court to match the
two assignments of error with the identically phrased two questions
presented, are nonetheless fatal to the appeal. See Munn v. N.C.
State Univ., ___ N.C. App. ___, ___, 617 S.E.2d 335, 339 (2005)
(Jackson, J. dissenting) (failure to include record or transcript
references under Rule 10 warrants dismissal), rev'd per curiam for
the reasons in the dissent, 360 N.C. 353, 626 S.E.2d 270 (2006);
see also Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d
360 (2005); In re Foreclosure of a Deed v. Branch Banking & Trust
Co., ___ N.C. App. ___, ___, 625 S.E.2d 155, 160 (2006) (relying on
Viar, the Court held that questions not corresponding to the
correct assignments of error will not be reviewed).
The appellate dead-end associated with the failures in
sufficiency and preservation evident in respondent's assignments of
error has, in at least one instance, not been so abrupt. In
Hammonds v. Lumbee River Electric Membership Corporation, this
Court cataloged recent decisions on appellate rules violations and
recognized that dismissal was not automatic.
Since the decision of the Supreme Court in
Viar, this Court has not treated violations of
the Rules as grounds for automatic dismissal.
Instead, the Court has weighed (1) the impact
of the violations on the appellee, (2) the
importance of upholding the integrity of the
Rules, and (3) the public policy reasons for
reaching the merits in a particular case.
Hammonds v. Lumbee River Elec. Mbrshp. Corp., ___ N.C. App. ___,
___, 631 S.E.2d 1, 10 (2006). While an account of our recent
decisions may reflect a tri-part analysis on whether violations of
the Rules warrant dismissal, the binding precedent from our Supreme
Court intimates we dispense with the hesitation.
The Court of Appeals majority asserted that
plaintiff's Rules violations did not impede
comprehension of the issues on appeal or
frustrate the appellate process. . . . It is
not the role of the appellate courts, however,
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.
Viar, 359 N.C. at 402, 610 S.E.2d at 361 (citations omitted).
Consistent application of the Rules belies a malleable test in
favor of a bright-line rule. See Broderick v. Broderick, ___ N.C.
App. ___, 623 S.E.2d 806 (2006) (dismissing appeal for broadsideassignment of error with no reference to record or transcript);
Munn, ___ N.C. App. at ___ 617 S.E.2d at 339 (Jackson, J.
dissenting) (“Plaintiff makes no attempt to direct the attention of
this Court to any portion of the record on appeal or to the
transcript with any references thereto. As such his appeal must be
dismissed for failure to follow our mandatory Rules of Appellate
Procedure.”). Assignments of error are not a mere formality; much
to the contrary, they are the foundation and frame of legal
arguments in an appellant's brief, and most importantly their
absence or ineffectiveness will leave potential issues of merit
beyond the reach of this Court save for the most exceptional
instances. See, e.g., May v. Down East Homes of Beulaville, Inc.,
___ N.C. App. ___, 623 S.E.2d 345 (2006); Walker v. Walker, ___
N.C. App. ___, 624 S.E.2d 639 (2005), disc. review denied, ___ N.C.
___, ___ S.E.2d ___ (No. 53P06) (4 May 2006); Wade v. Wade, 72 N.C.
App. 372, 375-76, 325 S.E.2d 260, 265-66, disc. review denied, 313
N.C. 612, 330 S.E.2d 616 (1985); Electric Co. v. Carras, 29 N.C.
App. 105, 107-08, 223 S.E.2d 536, 538 (1976).
This is not that exceptional case. As such, we must dismiss
respondent's appeal for several violations of the Rules of
Appellate Procedure.
DISMISSED.
Judge WYNN concurs in result only by separate opinion.
Judge LEVINSON concurs.
Report per Rule 30(e).
IN RE THE ADOPTION OF LMJS,
A minor child.
Wake County
No. 04 SP 2345
WYNN, Judge, concurring in the result.
For the reasons stated in my concurrence in Broderick v.
Broderick, __ N.C. App. __, 623 S.E.2d 806 (2006) (Wynn, J.,
concurring), I concur in the result only.
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