ALEX H. THOMPSON, and wife,
SHEILA THOMPSON,
Plaintiffs
v. Lee County
No. 98 CVS 371
LEE COUNTY,
Defendant and
Third-Party Plaintiff
v.
MICHAEL S. WATERS, d/b/a
WATERHOUSE REALTY &
CONSTRUCTION,
Third-Party Defendant
Bruce T. Cunningham, Jr., for plaintiffs-appellants.
No brief for defendant-appellee.
Staton, Doster, Post & Silverman, by Norman C. Post, Jr., for
third-party defendant-appellee.
CALABRIA, Judge.
Alex H. Thompson and Sheila Thompson (“plaintiffs”) appeal the
trial court's denial of their motion to set aside a notice of
dismissal. We dismiss the appeal for violations of the North
Carolina Rules of Appellate Procedure. On 16 April 1998, plaintiffs filed a complaint (“the first
complaint”) against Michael S. Waters (“Waters”) and Lee County
alleging negligence in the construction and inspection of their
home. On 28 April 1998, Lee County moved to dismiss which the
trial court granted on 6 August 1998.
(See footnote 1)
Following mediation on 5
March 1999, plaintiffs and Waters entered into a settlement
agreement whereby Waters agreed to purchase plaintiffs' residence
for $103,500.00 by 30 June 1999 if plaintiffs filed a voluntary
dismissal with prejudice for the negligence action instituted
against Waters. On 6 July 1999, plaintiffs filed a second
complaint (“the second complaint”) alleging Waters failed to comply
with the mediated settlement agreement. The summons accompanying
the second complaint was never served upon Waters. On 27 July
1999, plaintiffs filed a document captioned “Notice of Voluntary
Dismissal Without Prejudice.” However, plaintiffs stated in the
text of the document they were giving notice of voluntary dismissal
with prejudice pursuant to North Carolina Rule of Civil Procedure
41(a)(1)regarding the first complaint.
On 27 September 2004, plaintiffs filed a request for a jury
trial with the trial court administrator regarding the first
complaint for 29 November 2004. On 27 October 2004, the trial
court administrator informed plaintiffs the first complaint would
not be calendared because plaintiffs filed a voluntary dismissalwith prejudice on 27 July 1999 with respect to Waters and Lee
County was previously granted summary judgment on 13 February 2002.
On 24 May 2005, plaintiffs filed a motion to set aside their
“Notice of Voluntary Dismissal Without Prejudice.” On 31 August
2005, the trial court denied plaintiff's motion. Plaintiffs
appeal.
Plaintiffs argue the trial court erred in denying their motion
to set aside a notice of voluntary dismissal. However, plaintiffs
failed to cite any authority in their brief to this Court to
support their argument. Consequently, this assignment of error is
abandoned. See N.C. R. App. P. 28(b)(6) (2005) (stating
“[a]ssignments of error ... in support of which no ... authority
[is] cited, will be taken as abandoned).” Further, Rule 28(b)(6)
requires that “[i]mmediately 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.” Plaintiffs' brief fails to
identify either the numbered assignment of error or corresponding
page numbers where the assigned error appears in the record. “The
North Carolina Rules of Appellate Procedure are mandatory and
'failure to follow these rules will subject an appeal to
dismissal.'” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 401, 610
S.E.2d 360, 360 (2005) (quoting Steingress v. Steingress, 350 N.C.
64, 65, 511 S.E.2d 298, 299 (1999)). Consequently, plaintiffs'
failure to comply with Rule 28(b)(6) subjects this appeal to
dismissal. This assignment of error is dismissed. Dismissed.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).
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