Appeal by defendant from a judgment filed 17 February 2005 by
Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard
in the Court of Appeals 7 June 2006.
Ferguson, Scarbrough, Hayes & Price, P.A., by James E.
Scarbrough, for plaintiff-appellee.
Hanzel & Newkirk, by Robert B. Newkirk, III, for defendant-
appellant.
BRYANT, Judge.
Timothy L. Wahl (defendant) appeals from a judgment filed 17
February 2005 ordering him to pay Overcash Gravel & Grading Co.,
Inc. (plaintiff) $12,775.27 plus interest.
Defendant is the owner of a tract of property located in
Davidson, North Carolina. Defendant initially hired D.W. Cherry to
construct a riding ring and barn for horses on the property.
However, D.W. Cherry did not have the appropriate equipment to
grade the riding ring properly and advised defendant to locate a
contractor with a laser grader to perform the necessary and proper
grading. Subsequently, defendant hired plaintiff to finely grade
the riding ring to enable it to drain properly. Plaintiffpossessed the necessary equipment required to complete defendant's
job. Pursuant to an oral contract with defendant, plaintiff began
working on the property on 27 April 2001, grading two riding rings,
digging drainage ditches and clearing brush and trees. Plaintiff
requested defendant to remove a fence that enclosed one ring;
however defendant declined to do so, thereby limiting the slope of
grade for that ring. Plaintiff completed the project on 8 June
2001. Defendant was mailed an invoice for the work performed by
plaintiff in the amount of $12,775.27 and indicated on the invoice
that “past due invoices charged a 1.5% per month service charge.”
Defendant received several calls from plaintiff asking for payment;
however, defendant did not pay plaintiff despite several promises
to do so. On one occasion defendant told plaintiff he had paid
plaintiff's agent, when in fact he had not.
On 12 April 2004, plaintiff commenced this civil action. At
the filing of his Answer and Counterclaim, defendant for the first
time, protested the amount of plaintiff's invoice and contested the
quality of plaintiff's grading work. The trial court concluded
“plaintiff and [] defendant entered into a valid and binding oral
contract for the performance of labor and the furnishing of
materials on [] defendant's property.” The trial court ordered
defendant to pay plaintiff $12,775.27 with interest from 23 June
2001 at the rate of 18% per annum (1.5% per month) until the date
of the entry of judgment, 17 February 2005, and thereafter at 8%
per annum until paid in full. Defendant appeals.
_____________________
In the instant case, defendant has failed to comply with the
North Carolina Rules of Appellate Procedure, therefore, we decline
to reach the merits of this case. Rule 28(a) of the North Carolina
Rules of Appellate Procedure provides that it is the “function of
all briefs required or permitted by these rules . . . to define
clearly the questions presented to the reviewing court and to
present the arguments and authorities upon which the parties rely
in support of their respective positions thereon.” N.C. R. App. P.
28(a). It is further required by our rules of appellate procedure
that:
Immediately following each question shall be 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. 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. The body of the argument shall
contain citations of the authorities upon
which the appellant relies.
N.C. R. App. P. 28(b)(6). Here, defendant violated Rule 28 when he
failed to reference each assignment of error under each question
presented within the argument section of his brief and failed to
reference each assignment of error with numbers and pages where
they appear in the record on appeal. N.C. R. App. P. 28(b)(6).
Defendant's assignments of error are stated:
1. The judgment entered on February 17, 2005
is not supported by the findings of fact
or conclusions of law.
2. The denial of appellant[']s motion for a
directed verdict was erroneous.
In these assignments of error, defendant has failed to “state
plainly and concisely and without argumentation the legal basis
upon which error is assigned.” N.C. R. App. P. 10(c);
Collins v.
St. George Physical Therapy, 141 N.C. App. 82, 89, 539 S.E.2d 356,
361-62 (2000);
Rogers v. Colpitts, 129 N.C. App. 421, 423, 499
S.E.2d 789, 790 (1998);
Kimmel v. Brett, 92 N.C. App. 331, 335, 374
S.E.2d 435, 437 (1988).
Defendant fails to argue either assignment of error stated
above. Rather, in the first two issues contained in his brief, he
argues that the trial court's conclusion as to the “account stated”
theory of recovery was based on
insufficient evidence presented at
trial. Further, none of the arguments raised by defendant
references any of its assignments of error, nor do any of the
arguments make reference to any pages in the record on appeal.
Therefore, the first two issues raised in defendant's brief are
deemed abandoned pursuant to Rule 28(b)(6).
See Walker v. Walker,
___ N.C. App. ___, ___, 624 S.E.2d 639, 641 (2005) (“[I]t 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.'”) (citation omitted).
In the third issue argued in the brief, defendant fails to
support his argument with “stated or cited authority.” Therefore,
this final issue is deemed abandoned. N.C. R. App. P. 28(b)(6);
State v. Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 355,
cert.denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003) (a party's
assignment of error is deemed abandoned in the absence of citation
to supporting authority).
In another violation of the rules, defendant failed to
provide a “full and complete statement of the facts.” N.C. R. App.
P. 28(b)(5). This section of the brief “should [have combined] a
non-argumentative summary of all material facts underlying the
matter in controversy which [were] necessary to understand all
questions presented for review, supported by references to pages in
the transcript of proceedings, the record on appeal, or exhibits.”
Consol. Elec. Distribs., Inc. v. Dorsey, 170 N.C. App. 684, 686,
613 S.E.2d 518, 520 (2005) (internal citation omitted).
Defendant's statement of the facts contained argumentative
statements and omitted material facts, such as when plaintiff began
working for defendant and the terms of their agreement. This was
insufficient and in violation of Rule 28(b)(5).
Finally, defendant references transcript numbers in his
statement of facts; however he has failed to provide this Court
with a copy of the transcript, despite noting in the record that a
transcript would be filed pursuant to Rule 9(c) of our appellate
rules. Without the ability to review this transcript, we cannot
determine the merits of this case.
Hicks v. Alford, 156 N.C. App.
384, 389-90, 576 S.E.2d 410, 414 (2003) (“It is the duty of the
appellant to ensure that the record is complete. . . . 'An
appellate court is not required to, and should not, assume error by
the trial judge when none appears on the record before theappellate court.'”) (internal citations omitted)). In addition,
Rule 28(b)(4) requires that appellant's brief contain a “statement
of the grounds for appellate review,” which “shall include citation
of the statute or statutes permitting appellate review.” N.C. R.
App. P. 28(b)(4). Defendant has failed to include this required
statement.
Our 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. North Carolina Dep't of Transp., 359 N.C.
400, 402, 610 S.E.2d 360, 361 (2005) (citing
Bradshaw v.
Stansberry, 164 N.C. 356, 79 S.E. 302 (1913)). Due to the number
and significance of the rules violations, we decline to invoke our
discretionary power pursuant to Rule 2, as our Supreme Court has
recently stated “it is not the role of the appellate courts . . .
to create an appeal for an appellant . . . and 'failure to follow
these rules will subject an appeal to dismissal.'”
Viar, 359 N.C.
at 402, 610 S.E.2d at 361 (citation omitted). Accordingly, we
dismiss this appeal.
Dismissed.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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