Last week the North Carolina Court of Appeals dismissed an appeal based on what it described as “substantial noncompliance” with the appellate rules. The dismissal in Smith v. North Carolina Department of Public Safety involved two non-jurisdictional defects—Appellant’s failure to cite legal authority in a brief and Appellant’s failure to provide a transcript of the proceeding from which this appeal arose.
Although non-jurisdictional defects do not always lead to a dismissal, the Court of Appeals found the defects in this case to be substantial. Of note, the order being appealed specifically stated that the trial court “carefully considered the sworn testimony of the witnesses in making its determinations.” Therefore, the Appellant’s failure to provide a transcript of the witness testimony made it impossible for the reviewing court “to assess the evidentiary basis for the trial court’s findings or conclusions.”
The Court of Appeals did recognize that the Appellant had made a “diligent attempt at acquiring a transcript.” Specifically, the Appellant (who was indigent and proceeding pro se) filed a timely request for a transcript at no cost. However, as the Court of Appeals also recognized, the trial court properly denied that request because an indigent civil litigant “who is not entitled to court-appointed counsel also is not entitled to obtain a transcript at no charge and is not excused from the requirement to include a transcript in the record.”
This unpublished decision is a good reminder that the North Carolina Rules of Appellate Procedure apply to everyone—to those proceeding pro se, to the indigent, and to those making diligent (but unsuccessful) attempts to navigate the appellate rules.
For more on potential transcript missteps, see our prior post on the In re T.H. opinion.
– Corinne Jones