We first review pertinent Rules of Appellate Procedure.
N.C.R. App. P. 10 addresses the assignment of error on appeal, and
provides in relevant part that review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal in accordance with this Rule 10. Rule 10(a). Further,
[e]ach 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. Rule 10(c)(1).
'One purpose of this rule is to identify for the appellee's
benefit all the errors possibly to be urged on appeal . . . so that
the appellee may properly assess the sufficiency of the proposed
record on appeal to protect his position.' Walker v. Walker
N.C. App. __, __, 624 S.E.2d 639, 640 (2005) (quoting State v.
Baggett & Penuel
, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999))
(citation omitted). Further,
it is long settled that the 'scope
of appellate review is limited to the issues presented by
assignments of error set out in the record on appeal; where the
issue presented in the appellant's brief does not correspond to a
proper assignment of error, the matter is not properly considered
by the appellate court.' Walker,
__ N.C. App. at __, 624 S.E.2dat 641 (quoting Bustle v. Rice
, 116 N.C. App. 658, 659, 449 S.E.2d
10, 11 (1994)).
We next apply these rules to the present case. Plaintiff made
thirteen assignments of error, in which he assigned error to: (1)
the sufficiency of the evidence supporting each of six findings of
fact; (2) the sufficiency of the evidence supporting each of three
of the court's conclusions of law; and (3) the adequacy of the
findings and conclusions to support the decretal part of the order.
There is nothing inherently incorrect about . . . [plaintiff's]
assignments of error. These assignments of error clearly preserve
for appellate review the issues stated therein[.] Walker,
App. at __, 624 S.E.2d at 641.
However, in his appellate brief, plaintiff does not argue any
of the issues he assigned as error. Instead, plaintiff's primary
argument is that the trial court erred by considering evidence and
finding facts concerning events that occurred before the entry of
the prior order. Moreover, plaintiff does not allege that he ever
objected to the court's use of evidence occurring outside the
proper time frame; and he did not assign error
to the admission of
any evidence. Accordingly, this issue was not preserved for
Plaintiff also argues in his brief that the court (1) ignored
evidence tending to show that defendant was disingenuous; (2)
ignored certain evidence favorable to him; and that (3) the court's
treatment of this evidence was an abuse of discretion. Again, none
of these issues are assigned as error. We conclude that plaintiffviolated the North Carolina Rules of Appellate Procedure, in that
none of his arguments were assigned as error.
The North Carolina Rules of Appellate Procedure are mandatory
and 'failure to follow these rules will subject an appeal to
dismissal.'. . . 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 v. N.C. Dep't of
359 N.C. 400, 401, 402, 610 S.E.2d 360, 361 (2005)
(quoting Steingress v. Steingress
, 350 N.C. 64, 65, 511 S.E.2d 298,
299 (1999), and citing Bradshaw v. Stansberry
, 164 N.C. 356, 79
S.E. 302 (1913)).
While we dismiss this appeal, we note that appellant's
arguments on appeal are without merit.
Judge ELMORE concurs.
Judge WYNN concurs in the result only in a separate opinion.
Report per Rule 30(e).
NORTH CAROLINA COURT OF APPEALS
Filed: 5 July 2006
ADRIAN RICHARD ULIN,
No. 03 CVD 0584
DAWN EILEEN ULIN,
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.
*** Converted from WordPerfect ***