In March, we blogged about a chart  summarizing post-Dogwood opinions involving appellate rules violations.  Drew and Carrie may be adding another entry to their chart.  In an opinion authored by Judge Tyson, the Court of Appeals dismissed yet another appeal for non-jurisdictional violations.

In re Gutowski involved two pro se appellants’ challenge to a superior court order allowing a bank to foreclose on, and ultimately sell, the appellants’ residence after they defaulted on their mortgage.  Like most pro se appeals, the Gutowskis’ appeal quickly became messy.

The foreclosure proceedings began before the clerk of the trial court, whose foreclosure orders are subject to review by the superior court.  Apparently, Mr. Gutowski believed that he could give oral notice of appeal of the clerk’s order in open court, as written notice of appeal to the superior court from the clerk’s order was made only by Mrs. Gutowski.  Having failed to join the written notice of appeal, Mr. Gutowski was not allowed to challenge the clerk’s order before the superior court.  Consequently, Mr. Gutowski’s subsequent appeal to the North Carolina Court of Appeals was dismissed for lack of jurisdiction.  No big surprise.

Mrs. Gutowski was not hampered by her husband’s jurisdictional error.  Nonetheless, the Court of Appeals declined to address the merits of her appeal, finding that her appellate brief contained sufficient non-jurisdictional defects to warrant dismissal of her appeal under Dogwood.  The In re Gutowski court cited three appellate rules in support of its decision to dismiss Mrs. Gutowski’s appeal for gross appellate rules violations.

(1) the absence of clearly defined issues, and arguments and authorities to support, in violation of Rule 28(a);

(2) the lack of concise statements of the standard of review, in violation of Rule 28(b)(6); and

(3) the absence of legal arguments to support Respondents’ contentions, in violation of Rule 28(b)(6).

After reviewing the Gutowskis’ brief, I am not surprised that Mrs. Gutowski’s appeal was dismissed for non-jurisdictional violations.  The brief was not the worst pro se submission I have ever seen—I was mildly impressed that they included a table of cases and authorities, supported the statement of the case with numerous record citations, and included a statement of grounds of appellate review.  However, the brief took a quantitative, as opposed to qualitative, approach to the appeal, raising 23 separate issues on appeal but failing to provide any real argument as to why the trial court’s order was erroneous.

Other than the fact that this case adds to the post-Dogwood canon, why blog about this opinion?  For me, the interesting question lies in the court’s assessment of the brief’s failure to include any legal authority in violation of Rule 28(a).  The Gutowskis’ brief contained numerous references and quotations from various foreclosure statutes.  I agree that the pro se appellants’ brief did not flesh out any legal arguments based on those statutes, and therefore impeded the court’s review of the appeal.  However, could the opinion (and the cases it relies on) be interpreted to suggest that citation to a statute is insufficient “legal authority” to support an argument under the Appellate Rule 28(a)?  To be clear, In re Gutowski does not hold that only using statutory authority to support a legal argument is an appellate rules violation.  However, the opinion’s uniform treatment of the failure to cite any legal authority whatsoever and the failure to make any real legal arguments caused me to pause.

Early in my career, the Court of Appeals declined to reach one of my issues on appeal because it concluded that a portion of my brief did not cite “legal authority.”  Naturally, I was appalled by my oversight and rushed to my appellate brief to determine how this had occurred.  Turns out, my brief contained a multi-page discussion on why the language of a particular statute should be interpreted in my client’s favor.  However, this particular statutory provision had never been interpreted by any appellate court.  I had not included any case authority regarding how this statute should be interpreted in my brief because the only authority for my argument was the statutory language itself.  My client ultimately prevailed in the appeal on another issue—making the issue of whether I had cited sufficient legal authority moot.  However, since that time, I have been careful to include qualifying language in my brief whenever I cannot find any case law in support of an argument.  (i.e., “Although undersigned counsel was unable to locate any case authority interpreting this particular statutory language . . . . .”).

Has anyone else had the Court of Appeals decline to address an issue for failure to cite case law (as opposed to statutory) authority?  Does the absence of a published opinion on an issue make the inclusion of a tangentially related unpublished opinion more acceptable?  What methods do use you to buttress the “citations to authority” requirement when making arguments that have never been addressed in an appellate opinion?  Let me know in the comments below.

–Beth Scherer

P.S.  The appellee’s brief repeatedly referred to the issues on appeal as “assignments of error.”  While some appellate practitioners may be unaware of the torrid history of assignments of error, some of us are old enough to have a heart attack every time we hear that phrase.  Thankfully, assignments of error remain (mostly) dead.