103 N.C. App. 642 | N.C. Ct. App. | 1991
Lead Opinion
We first note that no appeal having been taken from the 13 November 1989 judgment awarding plaintiff $199,745.07 in compensatory damages, that judgment is final and not affected by this attempted appeal.
As to this attempted appeal, defendant has violated the North Carolina Rules of Appellate Procedure in several ways. Rule 10(c)(1) of the Appellate Rules requires that assignments of error be separately numbered and that each assignment of error be confined to a single issue of law. Similarly, Rule 28(b)(5) requires that arguments in an appellant’s brief follow the pattern of Rule 10 so that each question and argument be separately stated.
Defendant’s sole assignment of error is as follows:
Assignment of Error No. l
The defendant-appellant assigns as error that the Trial Court erred to his prejudice in signing and entering the judgment against him dated August 9, 1990, and actually signed and entered on August 10, 1990, because the same was signed and entered without the presentation of any evidence or the finding of any facts to support or justify it or the allowance of treble damages of $599,235.21, or attorney fees of $5,408.10, or the sum of $604,643.31, and because the judgment was entered without legal justification and contrary to law, and without granting to the defendant an opportunity to be heard, or to*645 present evidence, or for trial by jury, and in violation of the defendant’s right not to be deprived of property without due process under the laws and Constitution of North Carolina, and under the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Similarly, defendant’s single question and argument in his brief attempts to address or assert at least six issues of law, ranging from asserted trial procedure errors to deprivation of due process.
There are other violations. Defendant asserts, for instance, that by reason of settlement of a companion case, plaintiff gave notice in open court on 6 November 1989 of voluntary dismissal of this case, yet this record includes no transcript of the proceedings on that occasion, no minutes of the clerk on that occasion, nor any affidavit of any court official to support this assertion.
The Rules of Appellate Procedure are mandatory, not merely directory. See State v. Fennell, 307 N.C. 258, 297 S.E.2d 393 (1982).
For the reasons stated, this appeal must be and is
Dismissed.
Dissenting Opinion
dissenting.
In my opinion the face of the record shows that the judgment appealed from is a nullity and should be vacated for two reasons. First, it shows that more than nine months before the judgment was entered this action came to an end when it was voluntarily dismissed in open court with the approval of the parties and the court alike. Danielson v. Cummings, 300 N.C. 175, 265 S.E.2d 161 (1980). Second, the findings of fact do not support the award of treble damages and attorneys’ fees.
