Phillips v. Texfi Industries, Inc.

ARNOLD, Judge. As 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 “in accordance with the provisions of Rule 27(c).” Rule 27(c), as amended effective 1 January 1979, expressly provides that “motions 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.” 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’s appeal should be dismissed. Moreover, we note that plaintiff’s 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’s deposition and the affidavits of three of defendant’s employees. The affidavits related to plaintiff’s status upon the premises, not to the issue of defendant’s negligence, and plaintiff’s deposition revealed no evidence of negligence on defendant’s part. Plaintiff’s testimony on deposition was that she parked in defendant’s 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’s motion for summary judgment, plaintiff presented affidavits which related only to her status. She gave no forecast of any evidence of defendant’s 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. [69] 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). Appeal dismissed. Judges WEBB and WELLS concur.