About a month ago, the North Carolina Court of Appeals issued an unpublished opinion that underscored the importance of compliance with Appellate Rule 9(a), which provides that appeals from the trial division will be reviewed “solely upon the record on appeal, the verbatim transcript of the proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” (emphasis added). In Wilson v. Wilson, the pro se appellant failed to contract for the transcription of the proceedings that he contended resulted in 21 (yes, twenty-one) issues for appeal. The Court first addressed whether many of these issues should be dismissed because the record on appeal did not have a verbatim transcript, nor did it have a narrative of the trial proceedings as set forth in Rule 9(c)(1) that would have allowed for an understanding of all the issues on appeal (an alternative to the verbatim transcript requirement that is allowed by Rule 9(a)(1)(e)). As it was the appellant’s responsibility to provide a complete record on appeal, which he did not do, the Court undertook a “Dogwood analysis” to determine if such appellate rule violations required dismissal of the appeal. The Court held that although the appellant’s violation of Rule 9 (as well as Rule 7 requiring the appellant to contract for the transcript) was a “nonjurisdictional defect” that under Dogwood would not normally lead to the dismissal of the appeal, in this particular case the violations rose “to the level of a substantial failure or gross violation” of the appellate rules. The Court’s reasoning was that the noncompliance, resulting in the lack of a transcript, effectively prohibited the Court from adequately reviewing the issues on appeal. As such, dismissal of the appeal was warranted as a sanction under Rule 34(b) and Dogwood.
Before ordering that dismissal, though, the Court examined whether an order from the trial court allowing the appellant to proceed in forma pauperis relieved the appellant of the responsibility to acquire the transcripts of the proceedings. Rule 7(a)(1) of the North Carolina Rules of Appellate Procedure affords relief from the transcript requirement to a litigant in a civil case who has been declared indigent by the court such that the litigant would be entitled to appointed appellate counsel. Pursuant to N.C. Gen. Stat. § 7A-451(a), civil actions that fall into this category are “(1) any cases in which imprisonment is likely to be adjudged; (2) a hearing on a petition for a writ of habeas corpus; and (3) a proceeding on an involuntary commitment.” As the case on appeal contested “pre-trial matters and distribution of marital assets,” and would not entitle an indigent litigant to appointed counsel, the Court determined that the appellant’s in forma pauperis order did not save his appeal. (Interestingly, on the same day the Court also issued a published opinion dealing with an indigent appellant’s failure to procure a transcript in an appeal of an involuntary commitment proceeding–his failure was excused and the case was remanded for a new hearing. See In re: Shackleford.)
Finally, the Court analyzed whether it should exercise its discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to suspend the rules and excuse the appellant’s violations (See prior blog post on Rule 2 here). The Court determined that there would be “no benefit from that course of action” because without the transcripts or a narrative of the trial proceedings, the Court could not possibly review the trial court’s rulings. Thus, the Court dismissed 19 of the appellant’s 21 issues on appeal.
The takeaway from this case should be fairly obvious: When appealing, make sure the record on appeal contains a verbatim transcript or a narrative of the trial court proceedings sufficient to allow proper review of the issues.