The Supreme Court stated in Dogwood v. White Oak, 362 N.C. 191, 657 S.E.2d 361 (2008), that noncompliance with nonjurisdictional rules normally should not lead to the dismissal of an appeal. The Dogwood Court also stated that the requirements of Appellate Rule 28(b), which govern the content of an appellant’s brief, are generally nonjurisdictional. Nonetheless, in Edwards v. Foley the Court of Appeals held that the appellants’ failure to include in their principal brief a complete statement of appellate jurisdiction (as required by Appellate Rule 28(b)(4)) was a jurisdictional violation that required dismissal of the appeal—at least for interlocutory appeals.
Edwards involved an appeal from a summary judgment order. While the appellants’ brief contained a statement of appellate jurisdiction, the appellants contended (incorrectly) that the summary judgment order was a final judgment under N.C. Gen. Stat. § 7A-27(b)(1). They also sought review under a statutory provision that permits the appellate courts in an appeal from “a judgment” to review “any intermediate order involving the merits and necessarily affecting the judgment.” N.C. Gen. Stat. §§ 1-278 & 7A-27(b)(4). However, the appellants’ principal brief did not argue that the order being appealed from affected a substantial right.
In response, the appellees’ brief argued that the appellants had failed to meet their burden of proving the existence of appellate jurisdiction.
The Edwards appellants, after being made aware of the error, moved to amend their principal brief to add an argument that the order on appeal affected a substantial right. The appellants may have been aware of cases stating that a reply brief cannot be used to argue for the first time the existence of appellate jurisdiction. See, e.g., Larsen v. Black Diamond French Truffles, Inc., ___N.C. App. ___, ___, 772 S.E.2d 93, 95 (2015) (“[W]e will not allow [appellants] to correct the deficiencies of their principal brief in their reply brief. Because it is the appellant’s burden to present appropriate grounds for this Court’s acceptance of an interlocutory appeal, and [appellants] have not met their burden, [the] appeal must be dismissed.”).
In denying the motion to amend, the Edwards court stated, “we see no functional difference between the appellants’ attempt in Larsen to correct their mistake in a reply brief and Defendants’ attempt in the present case to correct their mistake by moving to amend their principal brief after Plaintiffs have already filed their brief.”
What makes Edwards interesting, however, is its statement that the Court was “compelled to dismiss the appeal” because “when an appeal is interlocutory, Rule 28(b)(4) is not a ‘nonjurisdictional’ rule.” (italic in original). The Edwards court’s characterization of Rule 28(b)(4) as a jurisdictional rule is significant because it limits the application of the Dogwood balancing test and Appellate Rule 2.
As you likely recall, most appellate rules violations are evaluated under a Dogwood balancing test that seeks to limit the dismissal of appeals to all but the most egregious of appellate rules violations. Dogwood encourages appellate courts to apply less fatal sanctions that will not punish the appealing party but will encourage rules compliance by the party’s attorney. Some of the Dogwood balancing factors are: the number of violations, whether the violations impede comprehension of the issues on appeal, and whether and to what extent review on the merits would frustrate the adversarial process.
The Dogwood balancing test, however, does not apply to two categories of violations: waiver and jurisdictional error. Waiver usually occurs when a party fails to comply with one of Appellate Rule 10’s error preservation requirements. Waiver mistakes, however, do not compel dismissal of an appeal. The appellate court retains discretion under Appellate Rule 2 to review the merits of the appeal to prevent manifest injustice to a party.
In contrast, jurisdictional violations are the death knell of appellate practice and procedure. Dogwood’s balancing test does not apply to them. Neither can a jurisdictional error be evaluated and excused under Appellate Rule 2. Only the seldom-used writ of certiorari can be used to pardon jurisdictional errors.
Historically, the categories of jurisdictional errors have been fairly limited. For example, failure to comply with an appellate jurisdiction statute is a jurisdictional error. In addition, case law treats many—but not all—of Appellate Rule 3’s notice of appeal requirements as jurisdictional. See N.C. R. App. P. 27(c) (prohibiting the appellate courts from using Appellate Rule 2 to suspend the appellate rules’ deadlines for noticing an appeal). [Side note: For a theory of why Appellate Rule 3 has historically been viewed as jurisdictional, see here.] Moreover, Appellate Rule 1(c) states that the rules should “not be construed to extend or limit the jurisdiction” of the appellate courts as that is established by law.
To my knowledge, Edwards is the first time that a briefing requirement has been characterized as jurisdictional. True, appeals have been dismissed for the appellant’s failure to prove jurisdiction. For example, omitting the notice of appeal from the appellate record prevents a party from meeting its burden of proving jurisdiction. However, the appellate courts will usually allow parties to amend the record to add a missing notice of appeal if they seek to correct their error in a timely manner. Moreover, while numerous appeals are dismissed for the failure to adequately explain why the appellant has a right to immediate appellate review, a distinction arguably exists between an appellant who fails to meet its burden of proving jurisdiction and a case in which jurisdiction never existed in the first place. See Dogwood v. White Oak, 362 N.C. 191, 657 S.E.2d 361 (2008) (stating that “a jurisdictional default brings a purported appeal to an end before it ever begins”).
Edwards seems to indicate otherwise. And that means Edwards could have far-reaching implications. If Appellate Rule 28(b)(4) is truly jurisdictional, appellate courts are extremely limited in their ability to consider an appeal when the appellant’s principal brief does not contain a complete statement of appellate jurisdiction. It is irrelevant how clearly established the right to interlocutory review of the order on appeal is. See, e.g., N.C. Gen. Stat. § 1-569.3 (providing that orders denying a motion to compel arbitration are immediately appealable). Moreover, even if an appellant moved to amend its principal brief the day after its submission, the motion would have to be denied (absent certiorari review) if Rule 28(b)(4) is really a jurisdictional requirement. Finally, given that the appellants’ brief in Edwards contained an appellate jurisdiction statement (misguided though it might have been), how much detail is required to safely comply with Rule 28(b)(4)’s requirement that the statement of grounds for interlocutory review “must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial right”?
I am interested in knowing your thoughts on Edwards. Do you agree that Appellate Rule 28(b) is a jurisdictional rule that should be untouchable under Dogwood’s balancing test or Appellate Rule 2? Would the outcome in Edwards likely have been the same if either the Dogwood balancing test or Appellate Rule 2 had been applied?
Let me know in the comments below.