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Kellihan v. Thigpen12/5/2000
e pleadings and documents presented in the record on appeal do not clearly depict the date on which they were filed with the court; their cross-assignment of error is incorrect as defendants are cross- appealing a previous trial court order regarding the negligent infliction of emotional distress claim; and lastly, the first motion for partial summary judgment made by defendants Thigpen and Whiteville Medical Associates, P.A. filed on 27 August 1998 is not included. The argument could be made that the record on appeal has never in fact been settled, but as we find other grounds for dismissal, we choose not to address this argument.
We note that plaintiffs' inclusion of pleadings and documents presented in the record on appeal that do not clearly depict the date on which they were filed with the court is in violation of N.C.R. App. P. 9(b)(3) which states, " very pleading, motion, affidavit, or other paper included in the record on appeal shall show the date on which it was filed . . . . Every judgment, order, or other determination shall show the date on which it was entered. . . ."
Next, defendants argue that as they are separate appellees proceeding separately, failure of plaintiffs to make a timely request for judicial settlement after they were served with defendants' objections and amendments resulted in abandonment of their appeal as per N.C.R. App. P. 11(c). As there are other adequate grounds for dismissal, we choose not to address this issue here.
N.C.R. App. P. 25(a) states:
If after giving notice of appeal from any court, . . . the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed. . . .
"The time deadlines set out in our appellate rules are important and should be followed." Taylor v. City of Lenoir, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___ (slip op. 7). Plaintiffs failed to meet the time deadline set out in N.C.R. App. P. 12(a), and therefore their filing of the record on appeal in this case was late. This violation of our appellate rules subjects this appeal to dismissal on defendants' motion.
Our decision is consistent with other recent decisions dismissing appeals for appellate rules violations. See Taylor v. City of Lenoir, ___ N.C. App. ___, ___ S.E.2d ___; Bowen v. N.C. Dep't of Health and Human Servs., 135 N.C. App. 122, 519 S.E.2d 60 (1999); Bledsoe v. County of Wilkes, 135 N.C. App. 124, 519 S.E.2d 316; Talley v. Talley, 133 N.C. App. 87, 513 S.E.2d 838, review denied, 350 N.C. 599, ___ S.E.2d ___ (1999); Webb v. McKeel, 132 N.C. App. 816, 513 S.E.2d 596 (1999); Duke University v. Bishop, 131 N.C. App. 545, 507 S.E.2d 904 (1998).
Furthermore, we have reviewed this case on its merits, and we conclude that plaintiffs' arguments are without merit.
Based on plaintiffs' violation of our appellate rules, we hereby dismiss this appeal.
Appeal dismissed.
Judges LEWIS and WYNN concur.
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