Some moments will stick in your head forever. The birth of a child. The Challenger shuttle disaster. September 11th. President Kennedy’s assassination.
Ironically (and perhaps a little pathetically), “special” moments for this appellate practitioner include two appellate rules moments: Dogwood v. White Oak and the Supreme Court’s decision to abolish assignments of error.
It was 2008, and for several years appellate practitioners had been witnessing (or, for the most unfortunate, experiencing) a wave of dismissals for appellate rules violations. For more than a year, I had been working in the Supreme Court of North Carolina with one of our State’s best appellate litigators, Don Cowan, to “turn around” a group of cases involving dismissals for appellate rules violations. Ironically (and providentially), four days before it was to be orally argued, we got involved in a case called Dogwood v. White Oak. A few months later, the Supreme Court of North Carolina issued Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008), which dramatically changed (for the better) the framework for evaluating appellate rules violations. I’ll never forget how it felt trying to get the opinion to open on my laptop and then scanning frantically for the words we had hoped to see:
Accordingly, we remand to the Court of Appeals for consideration, consistent with this opinion, of whether the appellate rules violations in this case implicate Rules 25 and 34, and if so, whether a sanction other than dismissal is appropriate.
REVERSED AND REMANDED.
Dogwood v. White Oak was an opinion that resulted in many appellate practitioners cheering for the freedom they had gained from hyper-technical appellate rules violations.
Fast-forward a little over a year to July 3, 2009. I was preparing for an early Fourth of July party when I learned that the Supreme Court of North Carolina had amended the Appellate Rules to abolish assignments of error—or as I “affectionately” called them, “assignments of terror.” I even pretended that some of the fireworks that evening were to celebrate our Supreme Court’s decision to free appellate practitioners to focus on the substance of their appeals.
Amid those moments of great professional joy, I wrote an article and also presented an appellate CLE entitled, “Dogwood v. White Oak: Are We Out of the Woods Yet?” As part of those presentations, I reminded North Carolina attorneys that
[t]he appellate courts have made clear that the prevalence of rules violations in filings made to the appellate courts is what is at the root of this appellate rules drama. While the Supreme Court appears willing to grant the appellate bar a provisional reprieve from the wave of post-Viar dismissals, the Court’s patience with inattentiveness to the appellate rules is not infinite. . . . Therefore, remain vigilant when dealing with appellate rules violations.
In the past few years, I have seen appellate filings that have slipped back into old, bad habits. It is becoming evident that post-Dogwood, some attorneys are failing to devote a little extra time to their appellate filings.
Today, the North Carolina Court of Appeals issued an opinion, Trevarthen v. Treadwell, COA12-11 (July 3, 2012), that (sadly) makes me feel prophetic. The Court dismissed an appeal under the Dogwood v. White Oak framework for an attorney’s non-jurisdictional appellate rules violations. The facts of this appeal are not worth mentioning. Rather, the substance of the opinion is devoted to a painfully obvious conclusion: The Court of Appeals’ patience with inattentiveness to the appellate rules, grammar and spelling errors and the failure to properly format the appellant’s brief reached its limit in this case.
While I encourage you to read the opinion, below are some of the errors and mistakes that led to the dismissal of this appeal, as well as select quotes from the Court on those issues.
1. Failure to Include a Complete Statement of the Facts, Citations to the Record in the Brief, and a Complete Transcript with the Record. N.C. R. App. P. 28(b)(5); N.C. R. App. P. 7(a)(1).
Mineo and her counsel have included multiple factual assertions both in her statement of facts and throughout her argument that are unsupported by the record as provided. . . . Mineo and her counsel failed to include copies of the transcripts of both hearings held in this matter, as well as a copy of Mineo’s deposition testimony, despite their presentation in the brief of such factual assertions and legal arguments that occurred “at the hearings.” Such failure to include the requisite transcripts with the record on appeal is, itself, a violation of Rule 7(a)(1).
2. Failure to Include the Applicable Standard of Review (As Well As Trying to Argue That the Appellant’s Brief Had Contained a Standard of Review). N.C. R. App. P. 28(b)(6).
Mineo’s counsel neglected to include the standard of review in the principal brief. In the reply brief addressing the numerous rules violations raised by defendant, Mineo’s counsel not only included a statement of the standard of review applicable to Mineo’s appeal, but he also attempted, boldly, to assert to this Court that he did include a standard of review in the principal brief.
. . .
A statement of the question presented is not equivalent to a statement of the applicable standard of review. Mineo’s counsel, “an experienced 30[-]year litigator,” undoubtedly recognizes this fact, as he included a proper statement of the standard of review in the reply brief, despite his attempts to defend his disregard of that rule in the first instance.
3. Failure to Specifically Challenge the Trial Court’s Findings of Fact.
This Court simply cannot assign error to the trial court’s failure to make a finding of fact on the evidence where the appellant has neither raised that precise issue on appeal nor properly presented the evidence on which such an allegedly erroneous ruling relies. This Court has continuously and repeatedly noted that we will not assign error to findings of fact or conclusions of law that have not been challenged by the appellant on appeal.
4. Failure to Run Spell Check Before Submitting the Brief.
Finally, Mineo’s counsel’s apparent disregard for clarity and accuracy undermines his professionalism and disrespects this Court’s time. On reading Mineo’s principal brief, we counted no fewer than 55 misspelled words, all of which a quick “spell check” would have highlighted and corrected.
. . .
Although Mineo’s counsel states that he “regrets not finding all typographical errors prior to submitting the brief,” such plea is half-hearted at best, considering a gross majority of those errors could have been corrected simply by using a spell-check feature.
5. Failure to Proofread, Including Numerous Grammatical Errors.
Similarly, and more egregiously, Mineo’s counsel repeatedly misspells the name of the trial court judge who issued the order from which Mineo is now appealing. We note that after defendant highlighted Mineo’s multitude of errors, the reply brief remarkably corrects the trial judge’s name and contains far fewer typographical errors, thus indicating to this Court that Mineo and her counsel simply cared not to review her principal brief for errors or for rules compliance prior to submitting it to this Court.
. . .
Mineo’s counsel’s lack of punctuation and adherence to simple grammatical rules regarding sentence structure significantly impair the readability of the arguments and cloud this Court’s understanding of what exactly Mineo is attempting to appeal.
6. Finally, for Those Who Think That the Court Does Not Care about Proper Bluebook Citations, Tables of Authorities, and Pinpoint Citations.
Throughout the principal brief, Mineo’s counsel misspells the name of the case on which he relies and fails to provide a single correctly formatted citation throughout his entire argument.
. . .
To be sure, we understand Mineo’s counsel is referencing Rule 45(c)(1) of our Rules of Civil Procedure, which is properly cited to N.C. Gen. Stat. § 1A-1. [W]hen an appellant relies entirely on a single statute and fails to cite that statute correctly no less than twelve times throughout her brief, we question either her counsel’s ability as an attorney or her reliance on a statute that her counsel cannot seem to properly cite to this Court.
. . .
[A]though Mineo and her counsel moved this Court to file a corrected table of authorities, which we allowed, upon review of such authorities, we noticed Mineo’s counsel again failed to properly format a single citation.
. . .
Although Mineo’s counsel provides 47 footnotes of citation, not a single one is in proper Bluebook format, and many provide no pinpoint citations. Perhaps Mineo’s counsel would benefit from obtaining a copy of the Bluebook for reference in the future.
These are just some of the errors that led the Court of Appeals to conclude that “despite our Courts’ preference for reaching appeals on the merits, . . . we dismiss Mineo’s appeal pursuant to our authority under Rule 25(b) of our Rules of Appellate Procedure for substantial noncompliance and gross violation of our Appellate Rules.”
Three years ago to the day, I was celebrating the Supreme Court’s decision to abolish assignments of error. Three years later, it appears that some have forgotten the harsh lessons that should have been learned in the pre-Dogwood era.
Today’s opinion confirms what everyone reading this blog should already know. Dogwood is not a “get out of jail free card.” Read and follow the Appellate Rules. Get a copy of and follow the Bluebook. Citecheck your brief. Proofread your brief. Ask someone (or two “someones”) to also proofread your brief. Do not test the appellate courts’ patience. Don’t let your attention to details slip.
As Florynce Kennedy said, “Freedom is like taking a bath—you have to keep doing it every day!”