I can’t pass up the opportunity to blog about an appellate case titled Don’t Do It, [Sic] Empire, LLC v. Tenntex, COA 15-938 (Mar. 1, 2016) ([sic] in original)—especially when that case involves a failure to preserve an issue for appellate review under Appellate Rule 10. I also feel compelled to write about the Court of Appeals’ published opinion in State v. Peele, striking an appellee’s Rule 9(b)(5) Record Supplement. Here’s my shot at weaving those two cases together in one post.
Rule 9(b)(5) Record Supplements are relatively new creatures. The abolishment of binding “assignments of error” in 2009 in favor of nonbinding “proposed issues on appeal” created a potential conundrum. What if an appeal brief raised an issue that the parties had not anticipated when they designated documents for inclusion in the record on appeal? To head off that problem, the Supreme Court created Rule 9(b)(5) Record Supplements. Rule 9(b)(5)(a) gives a party a unilateral right to amend the record on appeal to add new documents if the current record “is insufficient to respond to the issues in an appellant’s brief or the issues presented in an appellee’s brief under Rule 10(c).” Id. The only other caveat is that the documents included in the Rule 9(b)(5) Record Supplement must have been “filed, served, submitted for consideration, admitted, or tendered in an offer of proof.” See N.C. R. App. P. 11.
Because a Rule 9(b) Record Supplement normally does not require leave of the appellate courts and is filed outside of the typical record settlement process, the opportunity for abuse exists. However, a party’s abuse of Appellate Rule 9(b)(5) can be policed by a motion to strike.
In State v. Peele, the Defendant argued that the trial court lacked subject matter jurisdiction to revoke his probation because the State had failed to prove that probation violation reports were timely filed. The State said, “Not so fast,” and filed with its appellee’s brief a Rule 9(b)(5) Record Supplement containing documents that purportedly demonstrated that the trial court had jurisdiction to revoke the Defendant’s probation.
The problem was that the documents in the Rule 9(b)(5) Record Supplement had not been presented to the trial court at the probation revocation hearing. Accordingly, the Court of Appeals struck the Supplement and all references to the Rule 9(b)(5) documents contained in the State’s brief for failure to comply with the Rule.
The State argued that even though the jurisdictional documents had not been specifically presented to the trial court judge in the probation revocation case, the documents were part of trial court files from other proceedings against the Defendant and, therefore, the Court of Appeals should consider them.
Citing a North Carolina Supreme Court opinion, the Peele Court held that while it had the authority to invoke Appellate Rule 2 to consider the documents filed in the former cases, in its discretion, it would decline to do so because it was the State’s burden to demonstrate subject matter jurisdiction in the trial court.
This analysis seems perfectly reasonable—at least until you learn more about the facts from Judge Zachary’s concurring opinion. Apparently, the Defendant did not object to the trial court’s exercise of subject matter jurisdiction until the case was on appeal. True—subject matter jurisdiction can be raised at any time, including for the first time on appeal. True—the State has the burden of proving that the trial court has subject matter jurisdiction. But it seems a bit unfair to allow a Defendant to remain silent about a jurisdictional problem in the trial court, raise the issue for the first time on appeal, and then reverse the trial court for an issue it was never given the opportunity to address (or the State was given the opportunity to correct).
Hmm, sounds kind of like an Appellate Rule 10 preservation issue, doesn’t it? Indeed, Judge Zachary pointed out the drawbacks of sandbagging the same day in Don’t Do It, [Sic] Empire:
The requirement expressed in Rule 10[(a)] that litigants raise an issue in the trial court before presenting it on appeal goes “to the heart of the common law tradition and [our] adversary system.” This Court has repeatedly emphasized that Rule 10[(a)] “prevent[s] unnecessary new trials caused by errors . . . that the [trial] court could have corrected if brought to its attention at the proper time.” . . . Rule 10[(a)] thus plays an integral role in preserving the efficacy and integrity of the appellate process. We have stressed that Rule 10[(a)](1) “is not simply a technical rule of procedure” but shelters the trial judge from “an undue if not impossible burden.”
Id. at slip op. p. 12 (quoting Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 195, 657, S.E.2d 361, 363 (2008)).
State v. Peele involves a tension in the Appellate Rules when there is a convergence of Appellate Rule 9(b)(5), Appellate Rule 10, and an appellant’s ability to raise subject matter jurisdiction for the first time on appeal. Perhaps the results in this case were driven by the State’s attempt to address a legitimate problem using the wrong appellate tool—the unilateral opportunity to amend the record under Appellate Rule 9(b)(5)(a).
Instead of unilaterally attempting to amend the record to include documents never considered by the trial court, the State may have been better off requesting that the appellate court remand the matter to the trial court so that it could address the issues (including whether to allow the State to introduce evidence pertaining to subject matter jurisdiction) for the first time. Or perhaps the State could have filed a motion asking the Court of Appeals for permission to supplement the Record under Appellate Rule 9(b)(5)(b), which allows a party to move to amend the record on appeal to “correct errors shown as to form or content.” Or perhaps the jurisdictional documents, which were public records after all, are reviewable under a judicial notice theory.
In any event, this opinion underscores the importance of making “doubly-triply sure” that subject matter jurisdiction has been established in the trial court—even if the other side does not object. Tempted to cut corners? Don’t Do It, [Sic]!