{
  "id": 3799435,
  "name": "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION",
  "name_abbreviation": "Viar v. North Carolina Department of Transportation",
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    "judges": [],
    "parties": [
      "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION"
    ],
    "opinions": [
      {
        "text": "PER CURIAM.\nOn appeal to this Court, defendant contends that plaintiffs appeal should be dismissed in accordance with Judge Tyson\u2019s dissenting opinion in the Court of Appeals for violation of the Rules of Appellate Procedure. We agree.\nThe North Carolina Rules of Appellate Procedure are mandatory and \u201cfailure to follow these rules will subject an appeal to dismissal.\u201d Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999). In the instant case, plaintiff has failed to comply with Rule 10 and Rule 28(b). With respect to assignments of error, Rule 10(c) provides the following:\n(1) Form; Record References. A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal in short form without argument, and shall be separately numbered. Each assignment of error shall so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An 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. Questions made as to several issues or findings relating to one ground of recovery or defense may be combined in one assignment of error, if separate record or transcript references are made.\nN.C. R. App. P. 10(c)(1). In this case, plaintiff presented two assignments of error, neither of which was numbered or made specific record references. Moreover, the second stated assignment of error did not \u201cstate plainly, concisely and without argumentation the legal basis upon which error [was] assigned.\u201d\nWith respect to an appellant\u2019s brief, Rule 28(b) requires the following:\n(6) An argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated. Immediately 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. Assignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\nN.C. R. App. P. 28(b)(6). Plaintiff made no argument as to the first stated assignment of error in his brief to the Court of Appeals. Thus, this assignment of error is deemed abandoned under Rule 28(b)(6). Nevertheless, plaintiffs brief in the Court of Appeals refers to assignment of error one and then to the pages of the record containing the dissenting opinion in the Industrial Commission. Moreover, plaintiffs second stated assignment of error purports to challenge the Industrial Commission\u2019s conclusion of law, but the arguments in plaintiff\u2019s brief in the Court of Appeals do not address the issue upon which the Industrial Commission\u2019s conclusion of law was based.\nThe majority opinion in the Court of Appeals, recognizing the flawed content of plaintiff\u2019s appeal, applied Rule 2 of the Rules of Appellate Procedure to suspend the Rules. The majority opinion then addressed the issue, not raised or argued by plaintiff, which was the basis of the Industrial Commission\u2019s decision, namely, the reasonableness of defendant\u2019s decision to delay installation of the median barriers. The Court of Appeals majority asserted that plaintiff\u2019s Rules violations did not impede comprehension of the issues on appeal or frustrate the appellate process. Viar v. N.C. Dep\u2019t of Transp., 162 N.C. App. 362, 375, 590 S.E.2d 909, 919 (2004). It is not the role of the appellate courts, however, to create an appeal for an appellant. As this case illustrates, the Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule. See Bradshaw v. Stansberry, 164 N.C. 284, 164 N.C. 356, 79 S.E. 302 (1913).\nFor the reasons stated herein and in that portion of the dissenting opinion in the Court of Appeals addressing plaintiff\u2019s violation of the Rules of Appellate Procedure, plaintiff\u2019s appeal should have been dismissed by the Court of Appeals. The decision of the Court of Appeals is vacated and plaintiff\u2019s appeal is dismissed.\nDISMISSED.",
        "type": "majority",
        "author": "PER CURIAM."
      }
    ],
    "attorneys": [
      "DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for plaintijfs-appellees.",
      "Roy Cooper, Attorney General, by William H. Borden, Special Deputy Attorney General, Robert T. Hargett, Special Deputy Attorney General, and Ann Reed, Senior Deputy Attorney General, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "CLAUDE M. VIAR, JR., Co-administrator of the Estate of MEGAN RAE VIAR, Deceased, and Co-administrator of the Estate of MACEY LAUREN VIAR, Deceased v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION\nNo. 109A04\n(Filed 7 April 2005)\nAppeal and Error\u2014 failure to comply with Appellate Procedure Rules \u2014 dismissal of appeal\nThe Court of Appeals should have dismissed plaintiff\u2019s appeal in an action under the Tort Claims Act for failure to comply with Rules 10 and 28(b) of the Rules of Appellate Procedure. The majority opinion in the Court of Appeals erred by applying Rule 2 of the Rules of Appellate Procedure to suspend the Rules and address the issue, not raised or argued by plaintiff, which was the basis of the Industrial Commission\u2019s decision.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the decision of a divided panel of the Court of Appeals, 162 N.C. App. 362, 590 S.E.2d 909 (2004), reversing and remanding a decision and order entered by the North Carolina Industrial Commission on 20 August 2002. Heard in the Supreme Court 6 December 2004.\nDeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for plaintijfs-appellees.\nRoy Cooper, Attorney General, by William H. Borden, Special Deputy Attorney General, Robert T. Hargett, Special Deputy Attorney General, and Ann Reed, Senior Deputy Attorney General, for the defendant-appellant."
  },
  "file_name": "0400-01",
  "first_page_order": 438,
  "last_page_order": 440
}