Duke Power Co. v. Flinchem, 59 N.C. App. 349 (1982)

Nov. 2, 1982 · North Carolina Court of Appeals · No. 8123SC1363

59 N.C. App. 349

DUKE POWER COMPANY v. J. W. FLINCHEM, MINNIE FLINCHEM, JOHN FLINCHEM, HELEN FLINCHEM

No. 8123SC1363

(Filed 2 November 1982)

Appeal and Error § 41.1— failure to follow Rules of Appellate Procedure —appeal dismissed

Appeal is dismissed for failure of appellants to comply with the Rules of Appellate Procedure where items constituting the record on appeal were not arranged in the order in which they occurred or were filed in the trial division in violation of App. R. 9(b)(4); the evidence was not narrated as required by App. R. 9(c)(1); appellants failed properly to identify and set out their assignments of error in violation of App. R. 10(c); appellants have included in the record on appeal hundreds of exceptions which were not properly preserved for review at trial in violation of App. R. 10(b); and appellants’ brief, in form and content, was in repeated violation of the requirements of App. R. 28.

Appeal by respondents from Long, Judge. Judgment entered 11 May 1981 in WILKES County Superior Court. Heard in the Court of Appeals 23 September 1982.

Petitioner Duke Power Company (Duke) initiated proceedings to acquire a right-of-way over respondents’ land for electric transmission lines. Proceedings before the Clerk of Superior Court resulted in an order of the Clerk, finding that Duke has the right to acquire the right-of-way by power of eminent domain; that Duke could not obtain its needed right-of-way by contract or agreement; and that the right-of-way sought by Duke was necessary for the operation of Duke’s system. The Clerk ordered that Duke was empowered to condemn respondents’ land and appointed commissioners to determine the compensation due respondents for the easement sought by Duke. The Commissioners assessed respondents’ damages. The Clerk affirmed the Commissioners’ report. On appeal, the matter was tried before Judge Long and a jury. From judgment entered on the jury’s verdict, respondents have appealed.

McElwee, McElwee, Cannon & Warden by William H. McElwee, III and William C. Warden, Jr., for appellee.

J. W. Flinchem, Minnie Flinchem, John Flinchem, and Helen Flinchem, pro se.

WELLS, Judge.

Respondents’ appeal violates a number of the Rules of Appellate Procedure. First, in violation of Rule 9(b)(4), the items constituting the record on appeal are not arranged in the order in which they occurred or were filed in the trial division, but are scattered in random fashion throughout the record. Second, there has been no attempt whatsoever to narrate the evidence as required by Rule 9(c)(1). Instead, respondents have simply included in the record the total record of evidence, consisting of the testimony of nineteen witnesses and comprising approximately 180 pages of the record on appeal, in question and answer form. Third, in violation of Rule 10(c), respondents have failed to properly identify and set out their assignments of error. Fourth, in violation of Rule 10(b), respondents have included in the record on appeal hundreds of exceptions which were not properly preserved for our review by action of counsel taken during the course of the trial. Finally, respondents’ brief, in form and content, is in repeated violation of the requirements of Rule 28. In short, the manner in which the appeal has been filed does not allow effective appellate review.

Rules of Appellate Procedure are mandatory and failure to observe them is grounds for dismissal of the appeal. See Britt v. Allen, 291 N.C. 630, 231 S.E. 2d 607 (1977).

For the reasons stated, the appeal in this case must be and is

Dismissed.

Judges Vaughn and Webb concur.