{ "id": 11867086, "name": "BRENDA L. SHOOK, Plaintiff/Appellant v. COUNTY OF BUNCOMBE, NORTH CAROLINA; STEVE METCALF, in his official capacity as former Buncombe County Manager; WILLIAM E. McELRATH, in his official capacity as (former) Assistant Buncombe County Manager and now Buncombe County Manager; MIKE HYATT, in his official capacity as Veterans Service Supervisor; CATHY COOMER, in her official capacity as Buncombe County Safety Officer; and RAY REDMON, in his official capacity as Director of Buncombe County Physical Facilities, Defendants/Appellees", "name_abbreviation": "Shook v. County of Buncombe", "decision_date": "1997-02-04", "docket_number": "No. COA96-109", "first_page": "284", "last_page": "287", "citations": [ { "type": "official", "cite": "125 N.C. App. 284" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "449 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "11" }, { "page": "11" }, { "page": "11" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525352 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "659" }, { "page": "659" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0658-01" ] }, { "cite": "324 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "pin_cites": [ { "page": "638-41" } ], "opinion_index": 0 }, { "cite": "355 S.E.2d 479", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "480" }, { "page": "481" }, { "page": "480-81", "parenthetical": "boldface emphasis ours" } ], "opinion_index": 0 }, { "cite": "319 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741625 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "415" }, { "page": "414-15" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0413-01" ] }, { "cite": "463 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796131, 795974, 795947, 795925, 795897 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0190-03", "/nc/342/0190-01", "/nc/342/0190-05", "/nc/342/0190-02", "/nc/342/0190-04" ] }, { "cite": "461 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "925" }, { "page": "925" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914858 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "231" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0227-01" ] }, { "cite": "455 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790154, 790155, 790225, 790136, 790074 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0114-02", "/nc/340/0114-05", "/nc/340/0114-01", "/nc/340/0114-04", "/nc/340/0114-03" ] }, { "cite": "452 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525809 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "481" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0468-01" ] }, { "cite": "479 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11865801 ], "year": 1997, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0136-01" ] }, { "cite": "407 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "329 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553288 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/329/0330-01" ] } ], "analysis": { "cardinality": 479, "char_count": 8605, "ocr_confidence": 0.741, "pagerank": { "raw": 1.8865655272088373e-07, "percentile": 0.7284030845041545 }, "sha256": "eb34ae76ce9cc72221aa41b0db97e4248d5d5c14b255e75449fa52ce0e376078", "simhash": "1:865852827f2a2a47", "word_count": 1458 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge MARTIN, John C., concurs in the result by separate opinion.", "Judge EAGLES concurs and also joins in the separate concurring opinion." ], "parties": [ "BRENDA L. SHOOK, Plaintiff/Appellant v. COUNTY OF BUNCOMBE, NORTH CAROLINA; STEVE METCALF, in his official capacity as former Buncombe County Manager; WILLIAM E. McELRATH, in his official capacity as (former) Assistant Buncombe County Manager and now Buncombe County Manager; MIKE HYATT, in his official capacity as Veterans Service Supervisor; CATHY COOMER, in her official capacity as Buncombe County Safety Officer; and RAY REDMON, in his official capacity as Director of Buncombe County Physical Facilities, Defendants/Appellees" ], "opinions": [ { "text": "SMITH, Judge.\nPlaintiff failed to comply with the appellate rules of this Court, and for this reason, we dismiss. Our rules require appellant to present a record in final form and complete. N.C.R. App. P. 9(a)(1)(e) and Q) (1997); Pharr v. Worley, 125 N.C. App. 136, 139, 479 S.E.2d 32, 34 (1997). In the instant appeal, plaintiff has failed to assign any error whatsoever in the record on appeal as required by N.C.R. App. P. 10(a) (1997) and 10(c)(1) (1997). See Muse v. Charter Hosp. of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, 598, disc. review denied, 340 N.C. 114, 455 S.E.2d 663 (1995). This omission is fatal to the appeal, as \u201c[a] party may not present for the first time in an appellate brief a question raising issues of law not set out in the assignments of error contained in the record on appeal.\u201d Branch Banking and Trust Co. v. Staples, 120 N.C. App. 227, 231, 461 S.E.2d 921, 925, disc. review denied, 342 N.C. 190, 463 S.E.2d 233 (1995).\nDefendant appellees have, in their brief, cited Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 480 (1987), as their primary authority on the issue of plaintiff appellant\u2019s omission of assignments of error. The Ellis Court, interpreting the then-existing N.C.R. App. P. 10(a), held that assignments of error are unnecessary in an appeal from summary judgment, since \u201creview of summary judgment is necessarily limited to whether the trial court\u2019s conclusions as to [] questions of law were correct ones.\u201d Id. at 415, 355 S.E.2d at 481.\nIn our view, Ellis is no longer the law. At the time of the Ellis decision, N.C.R. App. P. 10(a) read as follows:\n\u201cExcept as otherwise provided in this Rule 10, the scope of review on appeal is confined to a consideration of those exceptions set out in the record on appeal or in the verbatim transcript of proceedings, if one is filed pursuant to Rule 9(c)(2), and made the basis of assignments of error in the record on appeal in accordance with this Rule 10. No exception not so set out may be made the basis of an assignment of error; and no exception so set out which is not made the basis of an assignment of error may be considered on appeal. Provided, that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law, notwithstanding the absence of exceptions or assignments in the record on appeal.\nEllis, 319 N.C. at 414-15, 355 S.E.2d at 480-81 (boldface emphasis ours) (italicized emphasis in original) (quoting N.C.R. App. P. 10(a)).\nN.C.R. App. P. 10 was amended by our Supreme Court on 8 December 1988, with the amendments becoming effective for all judgments entered on or after 1 July 1989. See Amendments to the Rules of Appellate Procedure, 324 N.C. 613, 638-41 (1989). The amended version of Rule 10 is materially and substantially different from the version of Rule 10 in effect at the time of the Ellis decision \u2014 1987. The amended (and current) version of Rule 10(a) is as follows:\n(a) Function in Limiting Scope of Review. Except as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with this Rule 10. Provided, that upon any appeal duly taken from a final judgment any party to the appeal may present for review, by properly making them the basis of assignments of error, the questions whether the judgment is supported by the verdict or by the findings of fact and conclusions of law, whether the court had jurisdiction of the subject matter, and whether a criminal charge is sufficient in law.\nN.C.R. App. P. 10(a) (1997) (emphasis added). Additionally, N.C.R. App. P. 10(c)(1) (1997) states unequivocally that \u201c[a] listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal . . . .\u201d (emphasis added).\nThe appellate rules are promulgated by our Supreme Court pursuant to the rule-making authority conferred by Article IV, \u00a7 13(2) of the Constitution of North Carolina. Given the substance of the Supreme Court\u2019s changes to Rule 10 since its Ellis decision, assignments of error are now mandatory to perfect an appeal. See, e.g., Staples, 120 N.C. App. at 231, 461 S.E.2d at 925; Muse, 117 N.C. App. at 481, 435 S.E.2d at 598.\nPlaintiff\u2019s appeal purports to present a number of interwoven and complicated issues, amidst a record on appeal of three volumes and seven hundred and sixty-seven (767) pages. These circumstances highlight why our appellate rules are a necessity. When we are presented with an appeal such as the instant one, the rules are not merely ritualistic formalisms, but are essential to our ability to ascertain the merits of an appeal. Furthermore, the appellate rules promote fairness by alerting both the Court and appellee to the specific errors appellant ascribes to the court below. See Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994).\nPlaintiff\u2019s brief also violates other essential appellate rales. For instance, and for reasons made obvious by the discussion above, plaintiffs briefed arguments do not contain \u201creference [s] 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.\u201d N.C.R. App. P. 28(b)(5) (1997); Bustle, 116 N.C. App. at 659, 449 S.E.2d at 11. Therefore, \u201c[assignments of error not set out in the appellant\u2019s brief . . . will be taken as abandoned.\u201d Id.\nAs we stated in Bustle, \u201c[a]n appellate court will not review matters not properly before it.\u201d Bustle, 116 N.C. App. at 659, 449 S.E.2d at 11. Our rules are mandatory, and in fairness to all who come before this Court, they must be enforced uniformly. Id. Accordingly, plaintiff\u2019s appeal is dismissed.\nDismissed.\nJudge MARTIN, John C., concurs in the result by separate opinion.\nJudge EAGLES concurs and also joins in the separate concurring opinion.", "type": "majority", "author": "SMITH, Judge." }, { "text": "Judge Martin, John C.,\nconcurring in the result.\nI would affirm the trial court\u2019s order granting summary judgment in favor of defendants. In my view, the evidence forecast by plaintiff falls short of the showing required to impose liability upon defendant pursuant to the exception to the exclusivity provisions of the Workers\u2019 Compensation Act, G.S. \u00a7 97-1 et seq., created by our Supreme Court\u2019s decision in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). Thus, plaintiff\u2019s exclusive remedy is under the Workers\u2019 Compensation Act.\nI agree, however, that plaintiff\u2019s multiple violations of the Rules of Appellate Procedure so frustrate the review process in this case as to warrant dismissal of the appeal and I, therefore, concur in the result reached by the majority.", "type": "concurrence", "author": "Judge Martin, John C.," } ], "attorneys": [ "Howard C. McGlohon for plaintiff appellant.", "Russell & King, RA., by J. William Russell and Jill S. Stricklin, for defendant appellees." ], "corrections": "", "head_matter": "BRENDA L. SHOOK, Plaintiff/Appellant v. COUNTY OF BUNCOMBE, NORTH CAROLINA; STEVE METCALF, in his official capacity as former Buncombe County Manager; WILLIAM E. McELRATH, in his official capacity as (former) Assistant Buncombe County Manager and now Buncombe County Manager; MIKE HYATT, in his official capacity as Veterans Service Supervisor; CATHY COOMER, in her official capacity as Buncombe County Safety Officer; and RAY REDMON, in his official capacity as Director of Buncombe County Physical Facilities, Defendants/Appellees\nNo. COA96-109\n(Filed 4 February 1997)\nAppeal and Error \u00a7\u00a7 340, 418 (NCI4th)\u2014 violations of appellate rules \u2014 dismissal of appeal\nPlaintiffs appeal is dismissed for failure to comply with the Rules of Appellate Procedure where plaintiff failed to assign any error in the record on appeal as required by N.C. R. App. P. 10(a) (1997) and 10(c)(1) (1997) and where the arguments in plaintiff\u2019s brief do not contain \u201creference [s] 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\u201d as required by N.C. R. App. P. 28(b)(5) (1997).\nAm Jur 2d, Appellate Review \u00a7\u00a7 547, 550.\nJudge Martin, John C., concurring in the result.\nJudge Eagles concurs and also joins in the separate concurring opinion.\nAppeal by plaintiff from summary judgment entered 15 September 1995 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 21 October 1996.\nHoward C. McGlohon for plaintiff appellant.\nRussell & King, RA., by J. William Russell and Jill S. Stricklin, for defendant appellees." }, "file_name": "0284-01", "first_page_order": 322, "last_page_order": 325 }