{ "id": 11240815, "name": "DON WEBB and SUSAN WEBB, Plaintiffs v. DANNY CARROLL McKEEL, Defendant", "name_abbreviation": "Webb v. McKeel", "decision_date": "1999-04-06", "docket_number": "No. COA98-368", "first_page": "816", "last_page": "819", "citations": [ { "type": "official", "cite": "132 N.C. App. 816" } ], "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": "248 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "72" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554263 ], "year": 1978, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0387-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37", "parenthetical": "when \"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\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "when \"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\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "318 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "110", "parenthetical": "issuance of writ of certiorari by one panel of Court \"is the law of the case and cannot be overruled by... any other panel of the Court of Appeals\"" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526812 ], "year": 1984, "pin_cites": [ { "page": "652", "parenthetical": "issuance of writ of certiorari by one panel of Court \"is the law of the case and cannot be overruled by... any other panel of the Court of Appeals\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0650-01" ] }, { "cite": "258 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "361", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "298 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569817 ], "year": 1979, "pin_cites": [ { "page": "236", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0231-01" ] }, { "cite": "314 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "567-68" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526971 ], "year": 1984, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0252-01" ] }, { "cite": "374 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526975 ], "year": 1988, "pin_cites": [ { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0370-01" ] } ], "analysis": { "cardinality": 423, "char_count": 6298, "ocr_confidence": 0.767, "pagerank": { "raw": 8.123532716690217e-08, "percentile": 0.4682323177915006 }, "sha256": "9d91de464428f276bf70122554ccd35ba61475e8214d470977bd1a4f095b3fe7", "simhash": "1:25e4549a47eeeb6a", "word_count": 1025 }, "last_updated": "2023-07-14T21:08:15.604309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Panel consisting of Judges GREENE, JOHN and HUNTER." ], "parties": [ "DON WEBB and SUSAN WEBB, Plaintiffs v. DANNY CARROLL McKEEL, Defendant" ], "opinions": [ { "text": "PER CURIAM.\nPlaintiffs appeal the trial court\u2019s entry of judgment, bringing forward thirty-eight (38) assignments of error. However, we are unable to reach the merits of these arguments as plaintiffs\u2019 appeal must be dismissed.\nOn 27 October 1997, plaintiffs filed timely notice of appeal from a jury verdict awarding plaintiff Don Webb $75,000.00 in compensatory damages arising from a motor vehicle collision, but finding against appellant Susan Webb on her loss of consortium claim. On 4 December 1997, the trial court granted plaintiffs\u2019 \u201cMotion for Extension of Time to Serve a Proposed Record on Appeal\u201d filed that same date, thereby extending until 31 December 1997 plaintiffs\u2019 time to serve the proposed record on appeal [hereinafter PROA] on all parties.\nHaving failed to meet the trial court\u2019s extended deadline, however, plaintiffs filed with this Court on 5 February 1998 a \u201cMotion for Enlargement of Time\u201d within which to serve the PROA. Plaintiffs sought extension \u201cthrough and including February 13, 1998,\u201d citing as grounds that\n[c]ounsel for [a]ppellant was not able to finalize and serve the [PROA] within the time allowed .. . [a]s a result of his obligations at the law school, the relocation of his office and his need to attend to [a] family crisis.\nThis Court denied plaintiffs\u2019 motion 12 February 1998.\nNotwithstanding, on 13 February 1998, plaintiffs served the PROA on all parties. Defendant subsequently moved to dismiss plaintiffs\u2019 appeal 11 May 1998, asserting the PROA was not timely filed under the Rules of Appellate Procedure.\nIt is well established that the appellant \u201cbears the burden of seeing that the record on appeal is properly settled and filed with this Court.\u201d McLeod v. Faust, 92 N.C. App. 370, 371, 374 S.E.2d 417, 418 (1988). Further,\n[i]f after giving notice of appeal from any court. . . the appellant shall fail within the times allowed by these rules ... to take action required to present the appeal for decision, the appeal may on motion of any other party be dismissed.\nN.C.R. App. P. 25(a) (1999).\nIt is similarly well settled that the \u201cRules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal.\u201d Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-68 (1984). \u201cCounsel is not permitted to decide upon his own enterprise how long he will wait to take his next step in the appellate process,\u201d Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357, 361 (1979) (citations omitted), because the rules \u201care designed to keep the process of perfecting an appeal flowing in an orderly manner.\u201d Id.\nIn the case subjudice, plaintiffs\u2019 service of the PROA was accomplished forty-four (44) days following expiration of the trial court\u2019s extended deadline within which to serve such record. Significantly, that service was subsequent to denial by this Court of plaintiffs\u2019 motion to extend the service time, which motion itself was filed thirty-six (36) days after expiration of the time allotted by the trial court.\nPlaintiffs concede untimely service of the PROA, but respond to defendant\u2019s motion to dismiss by requesting\nthis Court, pursuant to its [discretionary] authority under Rule 2, [to] suspend the Rules . . . [and] to treat the [PROA] as having been timely filed ... [so as to] consider the merits of this case.\nPlaintiffs cite as grounds essentially the identical arguments earlier asserted in the \u201cMotion for Extension of Time\u201d denied by this Court.\nWe conclude that permitting plaintiffs\u2019 appeal to go forward at this point would be tantamount to retroactive grant of an extension of time within which to serve the PROA, and that such grant would in effect overrule the prior decision of this Court denying an extension. This we may not do. See Stone v. Martin, 69 N.C. App. 650, 652, 318 S.E.2d 108, 110 (1984) (issuance of writ of certiorari by one panel of Court \u201cis the law of the case and cannot be overruled by... any other panel of the Court of Appeals\u201d); cf. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (when \u201cpanel 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\u201d).\nMoreover, assuming arguendo this panel is not bound by the previous ruling on plaintiffs\u2019 motion, the \u201cRules of Appellate Procedure are mandatory unless the Appellate Division suspends them under App. R. 2.\u201d City of Hickory v. Machinery Co., 38 N.C. App. 387, 388, 248 S.E.2d 71, 72 (1978). Under the instant circumstances, involving delays of approximately five and six weeks respectively in moving to enlarge the time for service of the PROA and actual service thereof, we must decline plaintiffs\u2019 request for suspension of the Rules and allow defendant\u2019s motion to dismiss plaintiffs\u2019 appeal.\nAppeal dismissed.\nPanel consisting of Judges GREENE, JOHN and HUNTER.", "type": "majority", "author": "PER CURIAM." } ], "attorneys": [ "King & Bryant, P.A., by D. Mitchell King, for plaintiffs-appellants.", "Edward P. Hausle, P.A., by Edward P. Hausle, for plaintiffs-appellants.", "Walker, Barwick, Clark & Allen, L.L.P., by Jerry A. Allen, Jr., for defendant-appellee McKell.", "Moore & Van Allen, PL.L.C., by Christopher J. Blake, for defendant-appellee North Carolina Guaranty Insurance Association.", "Cranfill, Summer & Hartzog, L.L.P., by Gregory M. Kash, for defendant-appellee Great American Insurance Company." ], "corrections": "", "head_matter": "DON WEBB and SUSAN WEBB, Plaintiffs v. DANNY CARROLL McKEEL, Defendant\nNo. COA98-368\n(Filed 6 April 1999)\nAppeal and Error\u2014 delay in serving record on appeal \u2014 appellate rules not suspended\nAn appeal was dismissed for untimely service of the proposed record on appeal where there were delays of approximately five and six weeks in moving to enlarge the time for service of the proposed record on appeal and actual service thereof. Granting plaintiffs\u2019 request for suspension of the rules under Rule 2 would be tantamount to a retroactive grant of an extension of time for service, which would overrule a prior decision of the Court of Appeals in this case. Moreover, plaintiffs request must be denied under the circumstances.\nAppeal by plaintiffs from judgment entered 28 April 1997 by Judge Frank Brown in Wilson County Superior Court. Heard in the Court of Appeals 5 January 1999.\nKing & Bryant, P.A., by D. Mitchell King, for plaintiffs-appellants.\nEdward P. Hausle, P.A., by Edward P. Hausle, for plaintiffs-appellants.\nWalker, Barwick, Clark & Allen, L.L.P., by Jerry A. Allen, Jr., for defendant-appellee McKell.\nMoore & Van Allen, PL.L.C., by Christopher J. Blake, for defendant-appellee North Carolina Guaranty Insurance Association.\nCranfill, Summer & Hartzog, L.L.P., by Gregory M. Kash, for defendant-appellee Great American Insurance Company." }, "file_name": "0816-01", "first_page_order": 850, "last_page_order": 853 }