An opinion from the Court of Appeals this week is a reminder that one of the best “weapons” in an appellee’s arsenal is sometimes the power to sit back and wait for your opponent to dig his or her own grave.

 In re Foreclosure of Radisi involved two pro se appellants who made several fatal mistakes early on in their appeal.

First, the pro se Radisi appellants served a proposed record on one, but not both, of the appellees.  When the appellants filed their pro se brief in the Court of Appeals, they repeated their service mistake again—serving only one of the appellees.  There was no evidence that the appellee objected to the deficient service until it filed its motion to dismiss.  As the Court of Appeals noted, the failure to properly serve a proposed record and properly file and serve a brief are both substantial appellate rules violations that can subject an appeal to dismissal.

However, the violation that likely pushed this case firmly into Dogwood dismissal territory was the pro se appellants’ failure to include two key trial court documents (a promissory note and a deed of trust) in the final record on appeal. The Court of Appeals noted that these two documents were “essential” to deciding the issues on appeal.  Further, the appellants’ failure to include these key documents in the record made “meaningful review” of the issue on appeal “impossible.” Therefore, the “Court’s ability to review the merits” of the appeal was impaired, and the Court dismissed the appeal for appellate rules violations.

Appellees’ counsel made a strategic decision during the record settlement process not to seek to add these missing documents to the appellate record. Although the rules allow an appellee to insist that missing documents be added to the appellate record, sometimes a strategic advantage can be gained in allowing an appellant to file a deficient record.

Appellate Rule 9(a) provides that an appellate court’s review of the issues on appeal is to be based “solely upon the record on appeal.”  Rule 9 also makes the appellant responsible for including in the record on appeal as “much of the evidence . . . as is necessary for an understanding of all issues presented on appeal.”  Id. at 9(a)(1)(e). Thus, an appellant’s failure to include all required materials in the record on appeal often creates a situation where the Court of Appeals has no choice but to presume that the trial court acted correctly. See, e.g., State v. Fennell, 307 N.C. 258, 262, 297 S.E.2d 393, 396 (1982) (“Where the record is silent upon a particular point, it will be presumed that the trial court acted correctly in performing his judicial acts and duties.”).

In Radisi, the appellants’ omission of key evidence from the record doomed their appeal early on (at least absent a last minute motion by the appellants to amend the record).  If the Radishi appellees had not resisted the urge to add these missing documents to the record during the record settlement process, the appellate court may have been more inclined to reach the merits of the appeal.

Thus, next time an appellant sends you a poorly put together proposed record, think about whether not exercising your right to amend might be the best course.  Just because an appellee has the right to insist on a complete record does not necessarily mean that it should.

Conversely, when you represent an appellant be careful to include all arguably relevant documents in your proposed record.  The responsibility for putting together a proper and adequate record is ultimately the appellant’s.  As Radisi demonstrates, cutting corners can be fatal to an appeal.

–Beth Scherer