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Teal v. Theofrastous9/3/2002
, and we believe fatal, defect in plaintiffs' appeal is their failure to include either the complete transcript of all trial proceedings, or a narrative summary of all relevant evidence. Plaintiffs instead have included only an unidentifiedportion of the transcript, with no indication of what evidence was omitted. This is a violation of N.C.R. App. P. 9(a)(1)(e), which requires that the record on appeal must include either (1) a statement that the verbatim transcript, or a designated portion of the transcript, has been filed with the record, pursuant to N.C.R. App. P. 9(c)(2); or (2) a narration of the evidence, pursuant to N.C.R. App. P. 9(c)(1). Further, the portion of the transcript that is included on appeal is bound directly into the record, in violation of N.C.R. App. P. Rule 9(b), and N.C.R. App. P. Appendix B, Format and Style (" he transcript should not be inserted into the record on appeal, but . . . separately bound and submitted . . . with the record").
Plaintiffs' failure to file either the complete transcript of proceedings or a narrative of the relevant evidence is not a mere technical violation, but is an omission which cripples this Court's ability to conduct its review. Plaintiffs have argued that the trial court committed reversible prejudicial error by admitting certain testimony; yet due to their violation of Rule 9(a)(1)(e), we are unable to evaluate its possible prejudicial effect in the context of the entire trial proceedings. See Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988) (Court dismisses appeal that fails to include transcript or narrative summary, holding that " ithout the evidence, a determination as to whether defendant was prejudiced . . . is impossible" and concluding that appellant's "rule violations effectively preclude . . . review by this Court"). For the reasons discussed above, plaintiffs' appeal is
Dismissed.
Judge GREENE concurs with separate opinion
Judge HUDSON concurs.
Report per Rule 30(e).
GREENE, Judge, concurring in the result.
Plaintiffs appealed from the trial court's denial of their motion for a judgment notwithstanding the verdict and, in the alternative, a motion for a new trial. Neither plaintiffs' assignment of error nor their brief to this Court addresses any asserted error in the trial court's ruling on their motions. Thus, I would not review the denial of those motions. See N.C.R. App. P. 10(a), 28(a). The assignment of error and the brief instead address an evidentiary ruling made by the trial court during the course of the trial. As plaintiffs did not appeal from the judgment of the trial court entered consistent with the jury verdict, I would not address this alleged error. See N.C.R. App. P. 3. For these reasons, I therefore agree with the majority that plaintiffs' appeal should be dismissed.
I do note plaintiffs have included a portion of the transcriptin the record on appeal. This is in violation of our appellate rules. The record on appeal may include a narrative of the evidence as provided in Rule 9(c)(1). N.C.R. App. P. 9(a)(1)e., 9(c)(1). If the parties elect to use a transcript of the trial, that transcript is not to be included in the record on appeal; instead, it is to be filed as a separate document and will be treated as an exhibit by this Court. N.C.R. App. P. 9(c)(2); see N.C.R. App. P. Appendix B. The parties may elect to use a partial transcript, and in the event that they do, the record on appeal must indicate the partial nature of the transcript. N.C.R. App. P. 9(a)(1)e.
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