While reading through the latest batch of opinions from the North Carolina Court of Appeals, I was struck (again) by how often appellate cases are not decided on the merits but rather on issues of appellate procedure. At least one quarter of the published and unpublished opinions I reviewed had at least one issue that involved error preservation or appellate procedure.

For example, in Basmas v. Wells Fargo,, the appellants challenged a trial court’s declaratory judgment ruling.  However, a key issue in the appeal—the effect of a bankruptcy discharge on later foreclosure proceedings—was never raised in the complaint, the appellants’ brief, or at the trial court hearing.  The Court of Appeals also noted that the appellants’ brief contained no record citations to evidence supporting their arguments.  Therefore, the court refused to consider the merits of the argument.

On top of that, the appellants challenged one of the trial court’s factual findings but not the other factual findings in the trial court’s order.  Once again, the appellate court found that the appellants “failed to preserve this challenge to the trial court’s order,” and therefore the order was affirmed.

On this last point, I am reminded that the end of “assignments of error” was a wonderful day for North Carolina appellate practitioners. In the “old days,” appellants had to place assignments of error in the record on appeal.  In those assignments, the appellants had to identify every finding of fact that they contended was not supported by the evidence; otherwise, the issue was waived forever.  In the new appellate world, assignments of error no longer limit which findings of fact can be challenged in an appellant’s brief.  But that does not mean that all vestiges of “assignments of error” are completely gone. Appellate courts continue to note that when a party fails to “assign error” to particular findings, those findings are binding on appeal. These statements are not efforts by our appellate courts to revive assignments of error.  Instead, as a matter of appellate procedure, the courts are reminding parties of the duty to preserve alleged error by making an argument about contested findings in their appellate briefs.  Appellate courts do not have a duty to scour the record hunting for trial court error. Neither do they have responsibility for creating or guessing at the arguments of an appellant. Therefore, if you do not want to be bound by a factual finding of the trial court, you must specifically tell the appellate court in your brief.

While North Carolina’s appellate courts has not laid out a specific formula regarding how findings of fact should be challenged on appeal in the post-assignment world, the best practice is to specifically identify in the argument section of your brief those findings of fact (by specific number) that you are challenging, and then make arguments regarding those findings with full citations to the record on appeal.  I would also suggest that your “Issues Presented” specifically note that you are challenging certain findings of facts on appeal (i.e., Whether Findings of Fact 5, 29, 33, 36, 38-40, 42, 45-47, and 51-52 were supported by competent evidence.).

Finally, I risk chastisement by our appellate “junkies” if I fail to point out several unpublished cases also dealing with interesting issues of appellate procedure. Hall v. Hall involved a custody appeal where the appellant failed to serve her brief and the record on appeal “until well after the time requirements set forth in the rules of appellate procedure.”  Using the well-established Dogwood framework, the Court of Appeals extended mercy to the parent and decided the case on the merits.

Another opinion involved a criminal defendant whose notice of appeal improperly stated that he was appealing the district court’s judgment against him to the superior court, when in fact he was attempting to appeal the superior court’s judgment to the Court of Appeals. The defendant’s counsel wisely filed a petition for writ of certiorari owning up to error, and the Court of Appeals—noting that the defendant “should not be punished for his counsel’s failure to properly appeal”—granted the petition and addressed the merits of the appeal. State v. Martin.

In Geiger v. Central Carolina Surgical Eye, the defendants’ notice of appeal failed to specifically designate the order and judgment from which they were appealing.  However, the court determined that the notice of appeal’s detailed descriptions of the rulings from which the defendants sought to appeal were sufficient to confer appellate jurisdiction.  Bullet dodged.

Finally, in State v. Cook, the appellant did not give oral notice of appeal after entering his plea, as is typically seen in criminal cases.  Instead, the defendant filed a pro se written notice of appeal that “did not identify the court to which defendant appealed and did not include proof of service on the State.”  While the court found that the notice of appeal was technically insufficient to confer jurisdiction, it elected to exercise its discretion and review the appeal under its certiorari authority.  Slight graze, but no mortal appellate wound.

With the exception of Geiger, a common theme running through these appellate pardons is that the cases involved deprivations of some type of liberty interest.  Criminal and custodial cases are generally given more grace than the normal civil appeal.  So civil practitioners should stay on their toes!

-Beth Scherer