Olavarria v. Marriott
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-579 NORTH CAROLINA COURT OF APPEALS Filed: 16 December 2014 REINALDO OLAVARRIA, Plaintiff v. Wake County No. 13 CVS 3778 ROBERT L. MARRIOTT, Defendant. Appeal by plaintiff from judgment entered on or about 4 April 2014 by Judge Paul C. Ridgeway in Superior Court, Wake County. Heard in the Court of Appeals 23 October 2014. Reinaldo Olavarria, plaintiff-appellant pro-se. No appellee brief filed. STROUD, Judge. Plaintiff appeals judgment dismissing all the claims in his complaint and cross-complaint. For the following reasons, we affirm. I. On 19 March 2013, Background plaintiff filed a complaint against defendant for alienation of affections, criminal conversation, negligence per se, intentional interference with custodial -2rights, and slander; plaintiff also requested punitive damages on two of his claims. plaintiff’s On 21 May 2013, defendant responded to complaint and counterclaimed for defamation, intentional infliction of emotional distress, and intrusion. On 10 June 2013, plaintiff responded to defendant’s counterclaims and “cross-claimed”1 for trespass infliction of emotional distress. to land and intentional On 4 November 2013, plaintiff filed a motion entitled “Motion for Injunctive Relief Temporary Restraining Order” and in the body of the motion requested a “50 C Civil No Contact Order[.]” On 3 December 2013, plaintiff filed for summary judgment. On or plaintiff’s about motion 31 January for 2014, summary request for a no contact order. the judgment trial and court denied dismissed his On 6 March 2014, plaintiff filed a motion to continue, and on 11 March 2014, the trial court denied that motion. On or about 4 April 2014, the trial court filed a judgment dismissing all of plaintiff’s claims, defendant’s counterclaims, and plaintiff’s cross-claims determining that neither party had met their “burden of proof 1 Although plaintiff’s additional claims against defendant are not technically “crossclaims” as defined by North Carolina General Statute § 1A-1, Rule 13(g), this is the title plaintiff used, and we will refer to them as such. See N.C. Gen. Stat. § 1A-1, Rule 13(g) (2013). -3with respect to any of the claims[.]” On 11 April 2014, plaintiff appealed the judgment. II. Notice of Appeal Plaintiff first claims “the court erred in the denial of the Motion for Summary Judgment and the Motion for Injunctive relief[.]” However, plaintiff failed to file a notice of appeal concerning these orders, and therefore, his arguments regarding them will not be considered on appeal. See generally State v. Robinson, ___ N.C. App. ___, ___, 763 S.E.2d 178, 179 (2014) (“By failing to give timely notice of appeal, Defendant has lost his right to appeal.”) III. Evidence Presented Plaintiff next contends that the trial court erred in not allowing him “to present evidence to show the defendant witness” committed perjury. Instead of providing a transcript of the trial, plaintiff prepared a narration of the evidence, which it appears that plaintiff himself prepared. of evidence Appellate is permissible Procedure Rule 9, under the Although a narration North Carolina narration still Rule must certain requirements: (1) When Testimonial Evidence, Voir Dire, Statements and Events at Evidentiary and Non-Evidentiary Hearings, and Other Trial Proceedings Narrated -- How Set Out in of meet -4Record. When an issue is presented on appeal with respect to the admission or exclusion of evidence, the question and answer form shall be utilized in setting out the pertinent questions and answers. Other testimonial evidence, voir dire, statements and events at evidentiary and nonevidentiary hearings, and other trial proceedings required by Rule 9(a) to be included in the record on appeal shall be set out in narrative form except where such form might not fairly reflect the true sense of the evidence received, in which case it may be set out in question and answer form. Parties shall use that form or combination of forms best calculated under the circumstances to present the true sense of the required testimonial evidence concisely and at a minimum of expense to the litigants. N.C.R. App. P. 9(c)(1) (2014). Plaintiff’s narration is not in question and answer format. See id. we are In addition, plaintiff presented no offer of proof, so unable present, and to we discern are what evidence to consider unable plaintiff this wished argument. to See generally State v. Dew, ___ N.C. App. ___, ___, 738 S.E.2d 215, 221 (“It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness’ testimony would have been had he been permitted to testify. For that reason, in order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in -5the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record. In the absence of an adequate offer of proof, we can only speculate as to what the witness’ answer would have been. . . . As a result, Defendant is judgments not on entitled to relief basis of this the from the trial contention.” court’s (citations, quotation marks, and brackets omitted), disc. review denied, 366 N.C. 595, 743 S.E.2d 187 (2013)). IV. As noted above, Plaintiff’s “CrossClaims” plaintiff filed claims he entitled as “crossclaims” for trespass to land and intentional infliction of emotional distress. Plaintiff argues that the trial court should have granted relief on these “crossclaims” because the denial of the cross claim, by plaintiff, was in error, because, it was naturally occurring from the actions of defendant, and because, jurisprudence does dictate that all causes of action should be combined, as outlined in general statutes, to ensure duplicate matters are not before the courts, and court calendars are not filled with claims on the same action, cause of action, involving plaintiff and defendants. This is not a legally cognizable argument, nor has plaintiff cited any authority to support it, and thus this argument is overruled. See generally Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (“It is not the role -6of the appellate courts . . . to create an appeal for an appellant.”). V. Continuance Order While the heading of plaintiff’s fourth argument appears to be regarding discovery and grounds for a mistrial, the body of the argument is regarding the trial court’s order denying his motion to continue. Again, plaintiff failed to file a notice of appeal regarding that order, and we will not consider it on appeal. See Robinson, ___ N.C. App. at ___, 763 S.E.2d at 179. To the extent that plaintiff was attempting to make an argument regarding discovery issues or why he should be granted a “mistrial,” we again can find no cognizable legal argument or relevant legal authority and will not address these issues. See generally Viar, 359 N.C. at 402, 610 S.E.2d at 361. VI. Standard of Proof As best we can tell, plaintiff is contending that the trial court used the wrong standard of proof for his negligence per se claim. To the contrary, we note that the portions of the trial which are included in the narration prepared by plaintiff show that the trial court conducted this bench trial with commendable patience and correctly addressed each of plaintiff’s claims and contentions. Furthermore, once again, we cannot discern a legal -7argument to address regarding this issue from plaintiff’s brief, and thus we will not consider it. See generally id. VII. Mistrial Plaintiff next contends that the trial court should have granted a mistrial “because defendant did not provide notice of witness, did evidence and not participate witnesses that in discovery, caused unfair and presented surprise, against which plaintiff-appellant did not have time to prepare. failure to mistrial.” disclose by defendant-appellee are grounds The for a Plaintiff cites no law for his argument regarding a mistrial and our review of his narration has not provided any insight into plaintiff’s argument. not be considered. See generally id. VIII. Plaintiff As such, this argument will argues Evidence of Stalking that the trial court “erred in not considering stalking activities by defense to be probative and material with plaintiff is showing reference claiming sufficient to to that find IIED he claim.” himself defendant made guilty It an of appears that evidentiary the criminal offense of stalking, and thus the trial court should have used stalking in considering plaintiff’s emotional distress claim. intentional infliction of Again plaintiff cites no law, and to -8the extent that plaintiff makes an argument that defendant committed a crime, we agree that the trial court cannot consider a criminal conviction that did not actually occur, plaintiff believes he has sufficiently proven it. will not be considered. even if This argument See generally id. IX. Default Judgment Plaintiff’s last argument is one sentence which cites no law and defendant. requests “default judgment” be entered against This sentence requests a form of relief which is clearly not available, since defendant did answer plaintiff’s complaint and denied the material allegations. Stat. § 1A-1, Rule 55 (2013). X. This argument is dismissed. Conclusion For the foregoing reasons, we affirm. AFFIRMED. Judges GEER and BELL concur. Report per Rule 30(e). See N.C. Gen.
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