{ "id": 8550653, "name": "JUANITA J. PHILLIPS v. TEXFI INDUSTRIES, INC.", "name_abbreviation": "Phillips v. Texfi Industries, Inc.", "decision_date": "1979-11-20", "docket_number": "No. 797SC189", "first_page": "66", "last_page": "69", "citations": [ { "type": "official", "cite": "44 N.C. App. 66" } ], "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": "194 S.E. 2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557859, 8557835, 8557803, 8557821, 8557790 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0106-05", "/nc/283/0106-04", "/nc/283/0106-02", "/nc/283/0106-03", "/nc/283/0106-01" ] }, { "cite": "193 S.E. 2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "17 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553354 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/17/0087-01" ] }, { "cite": "253 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551745 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0551-01" ] }, { "cite": "218 S.E. 2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 375", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568529 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0375-01" ] } ], "analysis": { "cardinality": 320, "char_count": 5253, "ocr_confidence": 0.828, "pagerank": { "raw": 1.3152598708993427e-07, "percentile": 0.6253930248443056 }, "sha256": "5c13fc7d0873fce450dfb1767d8a0b5939211e094a2f8358c6563b9bb7550355", "simhash": "1:612b4dfecce5b8e7", "word_count": 917 }, "last_updated": "2023-07-14T22:44:31.887789+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and WELLS concur." ], "parties": [ "JUANITA J. PHILLIPS v. TEXFI INDUSTRIES, INC." ], "opinions": [ { "text": "ARNOLD, Judge.\nAs defendant points out, plaintiff has failed to comply with Rule 11(b) of the Rules of Appellate Procedure, which requires that appellant file with the clerk of superior court and serve on the appellee a proposed record on appeal within 30 days after appeal is taken. Plaintiff gave notice of appeal on 28 November 1978. On 10 January 1979, more than 30 days later, an order was signed allowing plaintiff 75 days within which to serve the case on appeal. Under Rule 11(f), extensions of the 30 day period in 11(b) may be allowed \u201cin accordance with the provisions of Rule 27(c).\u201d Rule 27(c), as amended effective 1 January 1979, expressly provides that \u201cmotions to extend the time for serving the proposed record on appeal made after the expiration of any time previously allowed for such service must be in writing and with notice to all other parties and may be allowed only after all other parties have had opportunity to be heard.\u201d Here it does not appear that the motion was made in writing, or that there was any notice or hearing. We have determined that for failure to comply with the Rules of Appellate Procedure, plaintiff\u2019s appeal should be dismissed.\nMoreover, we note that plaintiff\u2019s argument that defendant was not entitled to summary judgment could not prevail. The parties on a motion for summary judgment give a forecast of evidence. See Caldwell v. Deese, 288 N.C. 375, 218 S.E. 2d 379 (1975). Defendant, moving for summary judgment, relied upon plaintiff\u2019s deposition and the affidavits of three of defendant\u2019s employees. The affidavits related to plaintiff\u2019s status upon the premises, not to the issue of defendant\u2019s negligence, and plaintiff\u2019s deposition revealed no evidence of negligence on defendant\u2019s part. Plaintiff\u2019s testimony on deposition was that she parked in defendant\u2019s parking lot, got out of her car and walked around the car, stepped over a curb and fell on a sheet of ice. The patch of ice was two or three feet wide and ran for six feet along the curb. Plaintiff testified that she could see the ice; it was 10 a.m., the weather was clear and the sun was shining. Opposing defendant\u2019s motion for summary judgment, plaintiff presented affidavits which related only to her status. She gave no forecast of any evidence of defendant\u2019s negligence. Accordingly, summary judgment for defendant was proper. See Caldwell v. Deese, supra, cf. Jacobson v. J. C. Penney Co., Inc., 40 N.C. App. 551, 253 S.E. 2d 293 (1979); McArver v. Pound & Moore, Inc., 17 N.C. App. 87, 193 S.E. 2d 360 (1972), cert. denied 283 N.C. 106, 194 S.E. 2d 633 (1973).\nAppeal dismissed.\nJudges WEBB and WELLS concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Malone, Johnson, DeJarmon and Spaulding, by T. Mdodana Ringer, Jr., for plaintiff appellant.", "Battle, Winslow, Scott & Wiley, by Samuel S. Woodley, for defendant appellee." ], "corrections": "", "head_matter": "JUANITA J. PHILLIPS v. TEXFI INDUSTRIES, INC.\nNo. 797SC189\n(Filed 20 November 1979)\n1. Appeal and Error \u00a7 36.1\u2014 failure to serve case on appeal in apt time \u2014 dismissal of appeal\nAppeal is dismissed for failure of appellant to comply with the Rules of Appellate Procedure where appellant failed to serve the proposed record on appeal within 30 days after the appeal was taken as required by Appellate Rule 11(b), and an order thereafter entered allowing appellant additional time to serve the case on appeal was not made pursuant to a written motion and after notice and hearing as required by Appellate Rules 11(b) and 27(c).\n2. Negligence \u00a7 57.11\u2014 fall on ice in parking lot \u2014 failure to show negligence-summary judgment\nIn an action to recover for injuries received by plaintiff when she slipped on a sheet of ice on defendant\u2019s property, summary judgment was properly entered for defendant where plaintiff\u2019s materials showed that she parked in defendant\u2019s parking lot at 10:00 a.m., got out of her car and walked around the car, stepped over a curb and fell on a sheet of ice, the sheet of ice was two or three feet wide and ran for six feet along the curb, the weather was clear and the sun was shining, and plaintiff could see the ice, since plaintiff gave no forecast of any evidence of negligence on the part of defendant.\nAPPEAL by plaintiff from Brown, Judge. Judgment entered 28 November 1978 in Superior Court, NASH County. Heard in the Court of Appeals 19 October 1979.\nPlaintiff brings this action to recover for injuries she received when she slipped on a sheet of ice on defendant\u2019s property. Plaintiff testified on deposition that her husband is employed by defendant, and on 5 January 1976 she went to defendant\u2019s plant to take her husband the keys he needed for his locker there. At defendant\u2019s plant she pulled up in front of the guard house, got out and stepped over the curb, and fell on a sheet of ice. The guard house is located inside a parking lot, and plaintiff had driven into the parking lot at times to pick up or let out her husband, but she had never gotten out of the car there before. When plaintiff stopped her car on this occasion she had to walk around it to get to the guard house. The patch of ice upon which she fell was two or three feet wide and six feet long, and she did not see it until she was putting her foot down on it.\nDefendant moved for summary judgment, which was granted. Plaintiff appeals.\nMalone, Johnson, DeJarmon and Spaulding, by T. Mdodana Ringer, Jr., for plaintiff appellant.\nBattle, Winslow, Scott & Wiley, by Samuel S. Woodley, for defendant appellee." }, "file_name": "0066-01", "first_page_order": 94, "last_page_order": 97 }