As seasoned appellate lawyers know, there was a time when appeals were regularly dismissed for technical violations of the Appellate Rules. Specifically, after the North Carolina Supreme Court’s decision in Viar v. North Carolina Department of Transportation, 359 N.C. 400, 610 S.E.2d 360 (2005), the Court of Appeals began dismissing appeals for violations of even the most obscure rules. See, e.g., Selwyn Village Home Owners Assoc. v. Cline & Co., 186 N.C. App. 645, 651 S.E.2d 909 (2007) (dismissing appeal for failure to identify assignments of error by page number and improperly sized margins in brief); Capps v. NW Sign Industries of N.C., 186 N.C. App. 616, 652 S.E.2d 372 (2007) (dismissing appeal for failure to identify all citations supporting each assignment of error in record); Jones v. Harrelson & Smith Contractors, LLC, 180 N.C. App. 478, 638 S.E.2d 222 (2006) (same).
The zeitgeist changed in 2008 with the Supreme Court’s pronouncement that non-jurisdictional Appellate Rules violations should not normally lead to dismissal of the appeal unless the errors are “gross” or “substantial.” Dogwood Development & Management Co. v. White Oak Transport Co., 362 N.C. 191, 657 S.E.2d 361 (2008). Even then, dismissal is only warranted “in the most egregious instances.” Id. Since Dogwood, fewer appeals have been dismissed outright for non-jurisdictional rules violations.
This permissive trend of the last few years occasionally has its exceptions. In Harrington v. Brents, No. COA-11-1170, released Tuesday, the pro se Plaintiff managed to put together an appeal failing the Dogwood standard that only the “most egregious instances” warrant dismissal. Plaintiff had filed a complaint for money owed and sought a default judgment when defendant failed to respond. Even with no adversary, Plaintiff couldn’t prove his case at the trial court, however. After his complaint was dismissed, Plaintiff appealed pro se. Unfortunately for Plaintiff, he failed to:
1. Include complete or signed copies of the necessary pleadings, including the complaint or the order appealed. See N.C.R. App. P. 9(a)(1)(d), (j).
2. Include an accessible transcript of the proceedings appealed from (instead, he submitted only corrupt or blank CDs purporting to contain audio from the hearing). See N.C.R. App. P. 9(a)(1)(e) and 9(c) (of course, neither a transcript nor an audio recording is required to be submitted as part of the record).
3. Show that the record had been settled by one of the methods set forth in Rule 11, such as agreement of the parties or exchange of a proposed record and objections. See N.C.R. App. P. 11(a)-(c).
5. Include required material in his brief, such as the procedural history of the case, grounds for appellate review, facts, standard of review, citations to the record, or citations to legal authorities. See N.C.R. App. P. 28(b)(3)-(6) (not to put too fine a point on it, but this list would appear to contain just about all of the items constituting a typical brief).
On these violations, the Harrington court dismissed the appeal.
The Court of Appeals’s decision to dismiss the appeal was not made lightly. The Court struggled to construe the record and brief in an attempt to determine the issues presented for review. In the end, though, the Court of Appeals found the appellate rules violations to be “so numerous that [it was] unable to undertake meaningful review.”
The “unable to undertake meaningful review” lodestar gives me some relief that the appellate courts are not on the path of returning to a pre-Dogwood universe. It is one thing to be disproportionately punished with dismissal for an appellate rules violation that has little impact on the merits of the appeal, as was not uncommon from 2005 to 2008. It is quite another to so hamstring the appellate courts that they are unable to make sense of an appeal. In this sense, the dismissal of this appeal may not be so much a dismissal for violations of appellate rules as it is a complete failure of the plaintiff to carry his burden of convincing the appellate court that the trial court should be reversed. Not that I plan on letting my guard down for complying with the Appellate Rules quite yet.
What do you think? Does this holding give you more pause than it gives me?
For more on the issue of dismissal for appellate rules violations, see a number of publications previously prepared by our team.
**Full disclosure: our firm was involved in the Jones, Selwyn, and Dogwood cases at the North Carolina Supreme Court level**