A 2011 North Carolina Court of Appeals opinion provides yet another example of why attorneys should be careful when asking for sanctions or dismissal of an appeal for appellate rules violations. In the published opinion of Dafford v. JP Steakhouse LLC, –N.C. App. –, 709 S.E.2d 402 (2011), the defendants-appellees’ brief appeared to take some delight in pointing the Court of Appeals to plaintiff’s “numerous appellate rules violations.” Defendants highlighted alleged defects in plaintiff’s notice of appeal and various violations of Appellate Rule 28. The Notice of Appeal, for example, had factual errors and did not clearly identify the orders appealed from. Nevertheless, with one exception for the attempted appeal from a trial court order never formally entered in writing, the Court of Appeals found the Notice of Appeal to substantially comply with Appellate Rule 3 and declined to impose sanctions for the Rule 28 violations.
However, the really interesting part of this opinion is not plaintiff’s appellate rules violations, but the defendants’ own rules violations. First, defendants claimed that plaintiff had abandoned several “assignments of error,” and failed to include specific record references in her assignments of error. Fair enough . . . except that assignments of error were abolished for all appeals filed after 1 October 2009, and the Dafford appeal was filed 9 November 2009. Second (and even more unbelievable), defendants submitted their brief to the Court of Appeals single-spaced. Double-spaced briefs have been required in the appellate courts for almost 25 years. Noting how “odd” it was that “defendants would raise plaintiff’s appellate rule violations via a brief that so blatantly fails to comply with such a basic requirement of the appellate rules,” the Court of Appeals instead imposed sanctions on defendants’ counsel—both admonishing them and ordering them to pay the printing cost of the appeal.
The moral of the story? Think twice about using the Appellate Rules as a sword. Or, to switch metaphors, lawyers in glass houses should not throw stones.