A few weeks ago the North Carolina Court of Appeals plowed new ground: issuing the first opinion to cite Appellate Rule 38(b) since the Appellate Rules were adopted in 1975. This long-neglected rule was the catalyst for a published decision that dismissed sua sponte a substitute party’s appeal in Weishaupt-Smith v. Town of Banner Elk.

Here’s the background: American Towers first applied for a conditional use permit to construct a telecommunication tower in 2013. Plaintiff Weishaupt-Smith was a neighboring property owner who opposed the construction of the tower in proceedings before the Avery County Board of Adjustment and the Avery County Superior Court. After quite a bit of back and forth between the Board and the Superior Court, the Superior Court in May 2018 entered an order affirming the Board’s decision to issue a conditional use permit to American Towers. Weishaupt-Smith noticed an appeal.

A lot can happen when a case percolates in the lower tribunals for five years. For instance, the Census Bureau notes that a little over 10 percent of the population moves every year. Apparently, Weishaupt-Smith developed an itch for a change of scenery. The same day that Weishaupt-Smith noticed her appeal, her neighbor, William Stevenson, filed a motion to substitute under Appellate Rule 38. The motion noted that Weishaupt-Smith lacked standing to continue the appeal because she had recently sold her home. Stevenson, who owned property immediately adjacent to proposed tower location, asked the trial court for permission to continue as a substitute party for Weishaupt-Smith under Appellate Rule 38(b). With all parties consent, the trial court entered an order allowing the substitution of Stevenson for the purposes of the appeal.

Although no party challenged Stevenson’s standing to pursue the appeal (or even observed that there might be an issue), the Court of Appeals (in an opinion authored by Judge Hampson) noted that standing under Appellate Rule 38(b) is a jurisdictional matter. Jurisdictional issues may be addressed by a court sua sponte.

In relevant part, Appellate Rule 38 provides:

(a) Death of a Party. No action abates by reason of the death of a party while an appeal may be taken or is pending, if the cause of action survives. If a party acting in an individual capacity dies after appeal is taken from any tribunal, the personal representative of the deceased party in a personal action, or the successor in interest of the deceased party in a real action may be substituted as a party on motion filed by the representative or the successor in interest or by any other party with the clerk of the court in which the action is then docketed. . . .


(b) Substitution for Other Causes. If substitution of a party to an appeal is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subsection (a).

After reviewing analogous Federal Rule of Appellate Procedure 43(b), the Weishaupt-Smith court ultimately concluded that the trial court order allowing Stevenson’s post-judgment substitution was improper. The court reasoned that substitution under Appellate Rule 38(b) is appropriate only “where ‘necessary,’” and that “‘[n]ecessary’ means that a party to the suit is unable to continue to litigate.”  Thus, “a non-party to litigation cannot be permitted to simply substitute in an appeal where the original party (or their successor) has ceased litigation.”  The opinion suggested that if the purchaser of Weishaupt-Smith’s property had filed the motion for permission to be the substitute party, the trial court’s Appellate Rule 38(b) order would have been appropriate. The court also noted several steps that Stevenson could have taken before the judgment was entered that might have allowed his participation in the case.  But because Stevenson was not Weishaupt-Smith’s successor in interest, he was not an aggrieved party entitled to come in as a substitute party. Therefore, the Court held that the appeal was required to be dismissed.

What are your thoughts on the previously sleeping giant of Appellate Rule 38(b)? What types of scenarios might give rise to a proper substitution request under Appellate Rule 38(b)? Creative ideas for how the community members who opposed this petition could have avoided this scenario? Shoot me your thoughts in the comments below.

–Beth Scherer