Sometimes the North Carolina Court of Appeals encounters an appeal that gives it a case of the Mondays. Hill v. Hill is a case that, according to Judge Steelman, “appears to embody all of the flaws that could possibly create an abominable appeal of an equitable distribution judgment.”  Not the type of characterization of their work product that most attorneys like to hear.

What, exactly, were those flaws? Judge Steelman provided the laundry list:

  • The defendant-appellee did not file an appellate brief.
  • The trial court’s hearing transcripts were filed in paper and not electronic format, as required by Rule 7(b)(2) of the Rules of Appellate Procedure.
  • There was no transcript for one of the three underlying hearings, just a “cursory narrative of plaintiff’s testimony, which is written from plaintiff’s point of view.”
  • None of the 70 exhibits to the trial court were submitted on appeal.
  • Appellant freely referenced exhibits, though none were present in the record on appeal.
  • Appellant’s brief was “replete with inaccurate references to the record and transcript.”
  • The trial court’s order combined “evidentiary findings of fact, ultimate findings of fact, and conclusions of law without any attempt to make them separate portions of the order.”

While these violations were “substantial” and came “very close to meriting dismissal” the Court of Appeals ultimately decided that the appeal should not be dismissed.  See Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., Inc. (N.C. 2008).

In choosing to entertain the appeal, Judge Steelman wrote about the role of the Court of Appeals and the pragmatic approach it would take to reviewing the case:

 [T]he manner in which this appeal has been presented fundamentally hampers our review. The Court of Appeals sits as a reviewer of the actions of the trial court. In that role, we must be impartial to all parties. It is not our role to advocate for a party that has failed to file a brief, nor is it our role to supplement and expand upon poorly made arguments of a party filing a brief. “It is not the role of the appellate courts … to create an appeal for an appellant. … [T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless, and an appellee is left without notice of the basis upon which an appellate court might rule.” Abbott v. N.C. Bd. of Nursing, 177 N.C. App. 45, 48, 627 S.E.2d 482, 484-85 (2006) (citations omitted). We address only those issues which are clearly and understandably presented to us.

Though the Court exercised leniency with respect to the numerous violations of the Rules of Appellate Procedure, counsel would be wise to make every effort to abide by all of the Appellate Rules and submit a complete appeal.  As we have said before, too many “abominable appeal[s]” like this one will likely try the Court’s patience and could result in a resurgence of appellate rules dismissals.

Also query whether, in light of these violations, the Court might have been inclined to dismiss the appeal if the defendant-appellee had so moved.  While appellees are not required to submit briefs, by taking no action the defendant-appellee may have missed an opportunity to protect the Order it obtained at the trial court.  Ultimately, the Court of Appeals vacated portions of the equitable distribution order and remanded for additional proceedings.

— Eric Snider