Coleman v. Orr

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-8 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 KYLIE LYNN COLEMAN Plaintiff v. Wake County No. 12 CVD 13147 DANIEL WAYNE ORR Defendant Appeal by defendant from order entered 16 October 2012 by Judge Jennifer M. Green in Wake County District Court. Heard in the Court of Appeals 21 May 2013. No brief filed on behalf of plaintiff-appellee. Daniel Wayne Orr, pro se, defendant-appellant. PER CURIAM. Daniel Wayne Orr ( Defendant ) appeals from a Domestic Violence Protection Order filed 16 October 2012, the terms of which remain in effect until 16 October 2013. Defendant proceeds pro se, and plaintiff has declined to file an appellee brief. appeal. For the following reasons, we dismiss Defendant s -2I. Background We note that the record on appeal does complete factual or procedural background. not provide a Additionally, the transcript of the hearing held in this matter is not contained in the record. However, the record establishes the following facts. Defendant engaged in a and Kylie Lynn Coleman romantic relationship Henderson. Thereafter, Plaintiff residence. Subsequently, and ( Plaintiff ) living out Defendant both moved and were together of the in shared Plaintiff filed motions seeking a domestic violence protection order ( DVPO ) against each other in Vance County District Court. filed 10 April 2012, Judge S. Quon Bridges In an order dismissed both parties motions, concluding that the facts and circumstances [alleged by the parties] do not rise to the level of proof necessary for the issuance of domestic violence protective orders. On parte 18 order September of District Court.1 2012, protection Plaintiff against sought Defendant a temporary in Wake ex County In this order, the district court found that Defendant had a day earlier followed plaintiff and cut her off in 1 traffic and noted that Defendant had left notes for The order indicates that Defendant was living in Raleigh at that time. -3Plaintiff on her car and at her workplace. Concluding that there appeared to be a danger to Plaintiff of domestic violence, the court ordered that Defendant remain at least 100 yards away from Plaintiff at all times until 26 September 2012. later, Plaintiff filed a motion for a DVPO in Two days Wake County District Court, complaining that [Defendant] refuses to leave me alone after being told numerous times that I do not want any kind of association. Defendant was present at a hearing held on 16 October 2012. At the conclusion of that hearing, the district court entered a DVPO ordering that Defendant have no contact with Plaintiff for a period of one year, concluding that Defendant had Plaintiff. committed acts of domestic violence against Defendant filed and served timely notice of appeal from the DVPO on 15 November 2012. Following entry of the DVPO, Defendant filed, pro se, a Motion for a New Trial on 22 October 2012. Plaintiff through counsel filed a motion to dismiss and a motion for sanctions in response. On 18 Plaintiff s motion December to 2012, dismiss the district Defendant s court motion. granted Plaintiff subsequently withdrew her motion for sanctions in open court. Defendant did not file notice of appeal from the court s 18 December 2012 order. -4II. Jurisdiction & Standard of Review As entry of the DVPO in this case constitutes a final order, Defendant has an appeal of right pursuant to N.C. Gen. Stat. § 7A-27(c) (2011). A trial court may grant a protective order for the purpose of restraining violence. court sits reasonable the defendant from further acts N.C. Gen. Stat. § 50B-3(a) (2011). as the inferences finder can of be fact, drawn and from of domestic Where the trial where the different evidence, the determination of which reasonable inferences shall be drawn is for the trial [court]. Brandon v. Brandon, 132 N.C. App. 646, 651, 513 S.E.2d 589, 593 (1999) (quoting Electric Motor & Repair Co. v. Morris & Assocs., 2 N.C. App. 72, 75, 162 S.E.2d 611, 613 (1968))(alteration in original). Accordingly, where the trial court s findings of fact are supported by competent evidence, they are binding on appeal. Id. at 652, 513 S.E.2d at 593. The trial court s findings of fact must support its conclusions of law. Id. at 653, 513 S.E.2d at 594. III. Analysis As a preliminary matter, we note that Defendant failed to file any notice of appeal from the district court s 18 December 2012 order dismissing his Motion for a New Trial. -5Accordingly, we lack jurisdiction to hear any of Defendant s arguments related to that order. See Brooks v. Gooden, 69 N.C. App. 352 701, notice 707, of 318 appeal, S.E.2d this 348, Court (1984) acquires ( Without no proper jurisdiction. ). However, Defendant did properly appeal the DVPO. Accordingly, we have jurisdiction to address Defendant s arguments related to that order. deficiencies Nonetheless, which prevent Defendant s our brief review of contains the several balance of Defendant s arguments. Defendant s brief was filed in violation of our Rules of Appellate Procedure. Defendant s brief fails to include a non- argumentative statement of facts in violation of Rule 28(b)(5). Defendant s brief also violates Rule 28(b)(6) by statement of the applicable standard(s) of review. omitting a Defendant also used a proportional font smaller than 14 point and failed to include a certificate of compliance in violation of Rules 28(j)(1)(B) and (j)(2)(B). Defendant has also failed to comply with Rule 9, which requires that the record on appeal contain so much of the evidence, either in narrative form or in the verbatim transcript of the proceedings, as is necessary for an understanding of all errors assigned. Matter of Botsford, 75 N.C. App. 72, 74-75, 330 S.E.2d 23, 25 (1985). -6 [A] determination as to whether the trial court s findings are supported by the evidence requires a review of the evidence presented at the hearing. Miller v. Miller, 92 N.C. App. 351, 353, (1988). 374 S.E.2d 467, 468 It is the duty of the appellant to ensure that the record is complete . . . . An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court. Hicks v. Alford, 156 N.C. App. 384, 389-90, 576 414 S.E.2d 410, (2003) (quotation marks and citation omitted); see also West v. G.D. Reddick, Inc., 48 N.C. App. 135, 137, 268 S.E.2d 235, 236 (1980), rev d on other grounds, 302 N.C. 201, 274 judicially S.E.2d know 221 (1981) only ( The what Court of Appeals appears of can record . . . . Matters discussed in a brief but not found in the record will not be considered by this Court. appellant to transmitted see to that the the record appellate It is incumbent upon the is properly court. made (internal up and citation omitted)). Defendant s rule violations, particularly the lack of any comprehensive account of the DVPO hearing, have severely hampered our ability to understand and evaluate his arguments on appeal. Accordingly, we are obliged to dismiss Defendant's -7appeal. See Bledsoe v. Cnty. of Wilkes, 135 N.C. App. 124, 125, 519 S.E.2d 316, 317 (1999) (stating that the Rules of Appellate Procedure are mandatory and apply to everyone-whether acting pro se or being represented by all of the five largest law firms in the state ). DISMISSED. Panel consisting of Judges MCGEE, STEPHENS, and HUNTER, JR. Report per Rule 30(e).

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