Opinion
No. COA05-1478.
Filed August 1, 2006.
Appeal and Error — violation of appellate rules — dismissal of appeal
Although petitioner appeals from an order dismissing his petition for writ of certiorari based on lack of standing and lack of subject matter jurisdiction, the appeal is dismissed for failure to comply with the North Carolina Rules of Appellate Procedure, because: (1) petitioner's only assignment of error in the record on appeal lacks references to the record or transcript in violation of N.C. R. App. P. 10(c)(1); (2) petitioner's brief contains no reference to the lone assignment of error or to the numbers and pages by which it appears in the record in violation of N.C. R. App. P. 28(b)(6); and (3) our Supreme Court has stated that the Court of Appeals may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede the comprehension of issues nor frustrates the appellate process.
Judge BRYANT concurs in result only.
Judge HUNTER dissenting.
Appeal by petitioner from order entered 29 August 2005 by Judge Benjamin G. Alford in New Hanover County Superior Court. Heard in the Court of Appeals 17 May 2006.
Carolina Legal Counsel, by J. Wesley Casteen, for petitioner-appellant. Murchison, Taylor Gibson, PLLC, by Michael Murchison and Wessell Rainey, LLP, by John C. Wessell, III, for respondents-appellees.
Joseph T. Walsh ("the petitioner") appeals the order dismissing his petition for writ of certiorari for a lack of standing and a lack of subject matter jurisdiction. We dismiss for failure to comply with the North Carolina Rules of Appellate Procedure.
The petitioner owns real property at 308 Coral Drive in Wrightsville Beach, North Carolina. Charles W. Smith, III, and his wife, Constance C. Smith ("respondents") own property formerly owned by petitioner ("the Smith property") adjacent to petitioner's property. In July 2003, respondents contacted the Wrightsville Beach Development Code Administrator ("the Administrator") to determine whether their lots constituted two buildable lots. On 1 August 2003, the Administrator determined the Smith's property constituted two buildable lots.
On 4 April 2004, respondents applied for building permits to construct two single family beach cottages on the Smith property. On 6 July 2004, the Town of Wrightsville Beach ("the Town") issued building permits to respondents. On 29 July 2004, the petitioner appealed the Administrator's determination to the Wrightsville Beach Board of Alderman sitting as a Board of Adjustment ("the Board"). On 18 November 2004, the Board denied the petitioner's appeal and subsequently filed the order. On 20 January 2005, the petitioner filed a petition for writ of certiorari pursuant to N.C. Gen. Stat. § 160A-388(e) to review the Board's denial of his appeal. On 25 May 2005, respondents filed a motion to dismiss the petition. On 24 August 2005, Superior Court Judge Benjamin G. Alford granted respondents' motion to dismiss for lack of standing and lack of subject matter jurisdiction. The petitioner appeals.
The petitioner argues the trial court erred in granting respondents' motion to dismiss. The petitioner contends he is an aggrieved party who will suffer special damages if respondents build two cottages on their property. We dismiss the appeal for failure to comply with two of the North Carolina Rules of Appellate Procedure.
The first rule, N.C. R. App. P. 10(c)(1) (2005) states, in pertinent part, "[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references." (emphasis added). In the instant case, petitioner's only assignment of error in the record on appeal lacks references to the record or transcript. Immediately after the lone assignment of error, petitioner lists "(Items # 21 and 22)." Apparently, petitioner referenced finding and conclusion numbers 21 and 22 of the trial court's order. However, Rule 10(c)(1) requires record and transcript references, not the identity of the findings and objections to which appellant objects. Our Supreme Court recently held, in accordance with Rule 10(c)(1), that appellants must reference each assignment of error with clear and specific record or transcript references. See Munn v. N.C. State Univ., 360 N.C. 353, 626 S.E.2d 270 (2006), rev'g per curiam for reasons stated in 173 N.C. App. 144, 617 S.E.2d 335 (2005) (Jackson, J., dissenting).
Second, N.C. R. App. P. 28(b)(6) (2005), the rule which governs the required contents of an appellant's brief, states "[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." However, the petitioner's brief contains no reference to the lone assignment of error nor the numbers and pages by which it appears in the record. Recently, our Supreme Court reaffirmed that "[t]he 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, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005) (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)).
The dissent maintains "[t]o require the automatic dismissal of all cases for [such] hyper-technicalities was surely not the intention of our Supreme Court in Viar[.]" However, our Supreme Court in Viar dismissed for multiple Rules violations, including Rules some may deem "hyper-technical." See id., 610 S.E.2d at 361 (dismissing plaintiff's appeal for Rules violations including failure to reference each assignment of error with clear and specific record or transcript references in violation of Rule 10(c)(1)). Additionally, in Munn, supra, our Supreme Court recently reaffirmed their holding in Viar by dismissing an appeal for failure to comply with Rule 10(c)(1) because the plaintiff neglected to include record or transcript references with each assignment of error. Though the dissent cites to Hammonds v. Lumbee River Elec. Membership Corp., 178 N.C. App. 1, ___ S.E.2d ___ (June 20, 2006) (COA05-733), that decision is in direct contravention of Viar and Munn, supra, in addressing questions not properly preserved for appellate review due to multiple Rules violations, including Rules 10(c)(1) and 28(b)(6). Additionally, a panel of this Court has held in a prior published opinion that "this Court may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede our comprehension of the issues nor frustrate the appellate process." State v. Buchanan, 170 N.C. App. 692, 695, 613 S.E.2d 356, 357 (2005) (emphasis added). "Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court." In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Consequently, "[w]hile . . . a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court." State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004) (emphasis added). Therefore, the dissent, while free to note disagreement or point toward perceived error, is bound by Buchanan, supra, notwithstanding the holding in Hammonds.
Therefore, since petitioner's single assignment of error and accompanying brief to this Court violate both N.C. R. App. P. 10(c)(1) and 28 (b)(6), we dismiss this appeal.
Dismissed.
Judge BRYANT concurs in the result only.
Judge HUNTER dissents with a separate opinion.