In the decisions released by the Court of Appeals two weeks ago, there were a number that included the Court sanctioning parties for failing to adhere to the North Carolina Rules of Appellate Procedure. My colleague, Kip Nelson, noted in his post on those opinions that “after Dogwood, it is fairly rare that an appellate court will dismiss an appeal for rules violations.” Nevertheless, as the opinions discussed in that post demonstrated, appellate rules violations can, and still do, lead to dismissal of appeals in certain instances.
Yesterday, the Court issued an unpublished opinion that serves as “one stop shopping” for anyone interested in a refresher on Dogwood and the reasons that will justify dismissal of an appeal for rules violations. In Artis v. Import Services, LLC, the pro se appellant’s “numerous violations of the Rules of Appellate Procedure” lead the Court to dismiss her appeal.
The Court’s analysis in Artis began with a concise summary of Dogwood:
Generally, when an appellant fails to follow the Rules of Appellate Procedure, the consequence is dismissal of the appeal. “[R]ules of procedure are necessary . . . in order to enable the courts properly to discharge their dut[y] of resolving disputes.” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 193, 657 S.E.2d361, 362 (2008). “Compliance with the rules, therefore, is mandatory.” Id. at 194,657 S.E.2d at 362. Our Supreme Court has identified three categories of default from the Rules of Appellate Procedure, which, based on the nature of the default, may necessitate dismissal of the appeal. Id. at 194, 657 S.E.2d at 363 (“Whether and how a court may excuse noncompliance with the rules depends on the nature of the default.”).
The three categories of default from the Rules of Appellate Procedure are: “(1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements.” Id. Each type of default is treated differently for the purpose of determining whether the default warrants dismissal of the appeal. For example, regarding the default of waiver, “a party’s failure to properly preserve an issue for appellate review ordinarily justifies the appellate court’s refusal to consider the issue on appeal.” Id. at 195-96, 657 S.E.2d at 364. However, “Rule 2 permits the appellate courts to excuse a party’s [waiver] default in both civil and criminal appeals when necessary to prevent manifest injustice to a party or to expedite decision in the public interest.” Id. at 196, 657 S.E.2d at 364. In contrast, “[a] jurisdictional default . . . precludes the appellate court from acting in any manner other than to dismiss the appeal.” Id. at 197, 657 S.E.2d at 365. Finally, with regard to “nonjurisdictional requirements,” “only in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.” Id. at 200, 657 S.E.2d at 366.
The Court then applied these rules to appellant’s violations, which were both jurisdictional and nonjurisdictional in nature. On the jurisdictional side, the appellant violated Rule 3, requiring the notice of appeal to “designate the judgment or order from which appeal is taken.” As appellant actually filed her notice of appeal before the trial court order existed, the notice of appeal necessarily could not comply with this requirement or Rule 3. On the nonjurisdictional side, appellant never filed a transcript with the Court, a violation of Rule 7. She also violated Rule 9 by submitting a record on appeal that was missing “numerous documents required by [Rule 9],including an index of the contents of the record, her complaint, the summons with return, and a list of proposed issues on appeal.” The Court noted that lacking these documents, it was unable to examine the facts of the case and appellate review was “futile.” Based on these rule violations, the appeal was dismissed.
The takeaway from this case is fairly self-evident–failure to comply with the most fundamental appellate rules will result in dismissal of an appeal. But for any practitioner looking for a succinct tutorial on Dogwood, it is a good read.